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decided: January 19, 1973.


Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, April T., 1968, No. 1, in case of Commonwealth of Pennsylvania v. Willie Stafford.


Richard W. Rogers, for appellant.

William T. Nicholas, Executive Assistant District Attorney, with him Stewart J. Greenleaf, Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Jones. Former Mr. Chief Justice Bell and the late Mr. Justice Cohen took no part in the decision of this case. Mr. Justice Pomeroy concurs in the result. Concurring Opinion by Mr. Justice Roberts.

Author: Jones

[ 450 Pa. Page 254]

On March 11, 1968, Concezio Cane was accosted by four individuals and repeatedly stabbed; he died within

[ 450 Pa. Page 255]

    several hours. Appellant was subsequently arrested and indicted for murder and conspiracy to commit murder. Tried separately before a jury, appellant was convicted of murder in the first degree as well as conspiracy to commit murder and was sentenced to death. Following disposition of post-trial motions by a court en banc, this appeal was taken.

Due to the great number of contentions advanced by appellant, we will discuss only those facts necessary for a complete understanding of each argument at the appropriate time.

Appellant first argues that the court below erred in granting the Commonwealth's plea of surprise. During the course of the trial, appellant called William Brown, the bartender at the Norris Tavern where the appellant allegedly was drinking prior to the homicide. On direct examination by the defense, Mr. Brown testified that appellant was not present in the Norris Tavern on the night in question. Attempting to rebut Mr. Brown's testimony, the Commonwealth called Betty Gary in reliance upon her pretrial, sworn statement in which she specified that appellant was present at the Norris Tavern. However, once on the stand, Miss Gary testified that she was, "not too sure that I did or not [see the appellant]." Over defense objection, the court below granted the Commonwealth's plea of surprise and the Commonwealth proceeded to cross-examine its own witness.

We recently discussed this area of the law in Com. v. Knudsen, 443 Pa. 412, 278 A.2d 881 (1971). In Knudsen, a witness called by the Commonwealth as part of its case in chief, testified that he did not know whether the accused had cocked the hammer of the gun before confronting the victim whereas this same witness had unequivocally stated prior to trial that the accused did cock the gun. As in this appeal, the trial

[ 450 Pa. Page 256]

    court granted the Commonwealth's plea of surprise and the ruling was assigned as error.

"The courts of this Commonwealth have been liberal in allowing a party to cross-examine his own witness when it is believed that the interest of truth and justice so require. [Citations omitted] In all the cited cases, however, the witness sought to be cross-examined had made statements at trial which were directly contradictory to statements the witness had made earlier, and the in-court testimony, if believed, was such as to aid the opposing party.

"On the other hand, our courts have been loath to allow cross-examination for purposes of impeachment by use of prior statements when a witness states that he does not know or that he cannot remember. This is so for the reason that an in-court declaration does not harm the calling party nor aid the opposing party. [Citations omitted]. Hence, when a witness claims he does not know or cannot remember, the prior statements should not be introduced because of the danger that the prior statements will be considered as substantive evidence by the jury." 443 Pa. at 414-15, 278 A.2d at 882-83.

As in Knudsen, we believe the court below erred but that appellant was not prejudiced, "since the witness continued to adhere to [her] trial statements that [she] was unsure whether appellant [was present]."

Appellant's second contention is closely related to the first: the trial judge should have given cautionary instructions concerning the plea of surprise as well as the use of this pretrial statement. However, other than a general objection to the charge, cautionary instructions were not requested. Accordingly, ...

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