Appeal from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1971, Nos. 707 and 708, in case of Commonwealth of Pennsylvania v. Robert Payne.
F. Ross Crumlish, for appellant.
Milton M. Stein, Assistant District Attorney, with him Charles D. Milstein and James T. Ranney, Assistant District Attorneys, 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.
The appellant, Robert Payne, was convicted in a non-jury trial on September 27, 1971, of voluntary manslaughter and conspiracy. Post-trial motions were denied and the appellant received a sentence of four to twelve years for the voluntary manslaughter and a consecutive sentence of three years probation for the conspiracy. This appeal followed in which we reverse the judgments of sentence and award a new trial.
Three witnesses testified for the prosecution. One witness testified that the victim, Henry Fortune, was shot and killed in a rear room of Bolden's Bar in Philadelphia during the evening of May 21, 1971. That witness, who was in an adjacent rear room with his wife and father-in-law listening to music, said that he heard the victim arguing with someone and got up to investigate. As he was going from one rear room to the other
rear room, he saw a spark, heard two shots, and immediately thereafter the victim fell into his arms. He saw two men shuffling out the door of the room into the street. He could not give any description or information concerning the two men.
Another witness called by the prosecution was John Dollard, a friend of the appellant. During the direct examination of Dollard by the prosecution, Dollard said that he had not seen anyone with a gun or a rifle during the evening of the shooting. Dollard's testimony was inconsistent with an out-of-court statement which had been given to the police. When Dollard denied during direct examination that he had seen anyone with a gun or a rifle, the prosecution began to ask questions about the prior inconsistent statement. Defense counsel repeatedly objected, stating that Dollard was a prosecution witness and that the prosecution was "trying to impeach him, cross-examine its own witness." Defense counsel's objections were overruled, and the prosecution was permitted to cross-examine Dollard about his prior inconsistent statement. During the cross-examination, the prosecution read verbatim key portions of Dollard's prior inconsistent statement. In those portions, Dollard had placed the appellant and two of the appellant's friends, one with a rifle, near the bar. He also said he saw them running away after he heard a shot.
The cross-examination by the prosecution of its own witness was error. Cross-examination of a party's own witness is not permitted in the absence of a plea of surprise or hostility. Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972); Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957); Commonwealth v. Delfino, 259 Pa. 272, 102 A. 949 (1918); see Commonwealth v. Knudsen, 443 Pa. 412, 278 A.2d 881 (1971).
The prosecution does not challenge the rule which prohibits cross-examination of ...