Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, Nos. 247 to 250, inclusive, in case of Commonwealth of Pennsylvania v. Charles Bynum.
Austin J. McGreal, for appellant.
Martin H. Belsky, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Justice O'Brien concurs in the result. Mr. Chief Justice Jones dissents.
The appellant, Charles Bynum, was convicted of murder in the first degree, burglary, aggravated robbery, and weapons violations. The convictions resulted from a criminal episode on September 2, 1969, when the Piccadilly Bar in Philadelphia was robbed. The bartender, James West, Sr., was killed from a shotgun blast during the robbery.
Post-trial motions were denied on December 21, 1971. On February 8, 1972, the appellant was sentenced to life imprisonment on the murder conviction, ten to twenty years on the aggravated robbery conviction, and five to twenty years on the burglary conviction. All sentences ran concurrently. Sentence was suspended on the weapons violations conviction. This appeal followed.
The appellant claims that prejudicial error occurred when the prosecution was permitted to impeach one of
its own witnesses through cross-examination. Because we agree, the judgments of sentence are reversed and a new trial granted.
The prosecution sought to prove that the appellant participated in a robbery of the Piccadilly Bar which resulted in the fatal shooting of the bartender by one of the other participants. Harold Williams was called as a witness by the prosecution. At the time of the robbery, Williams was sitting on the outside steps of a building near the Piccadilly Bar talking with friends. In an attempt to place the appellant at the scene of the robbery, Williams was asked on direct examination whether he had seen the appellant on the day of the alleged robbery. Williams answered, "I think so. I'm not sure, really." When the question was repeated, Williams gave the same answer after which the prosecution pleaded surprise and was permitted to cross-examine the witness. An objection by defense counsel was overruled. During the cross-examination, the prosecution attempted to impeach Williams by confronting him with a prior out-of-court statement in which Williams implicated the appellant by placing him at the scene of the crime.
The prosecution should not have been permitted to impeach its own witness. This issue is controlled by Commonwealth v. Knudsen, 443 Pa. 412, 278 A.2d 881 (1971), and more recent decisions reaffirming Knudsen. Commonwealth v. Tucker, 452 Pa. 584, 307 A.2d 245 (1973); Commonwealth v. Dancer, 452 Pa. 221, ...