John M. Elliott, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gale Barthold, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones did not participate in the decision of this case. Nix, J., filed a concurring opinion. Eagen, C. J., concurs in the result. Pomeroy, J., filed a dissenting opinion in which O'Brien, J., joins.
At about 11:30 p. m., March 2, 1974, an altercation broke out between two rival gangs after members of one gang
arrived at a party attended by members of the other. During the fighting which followed John Alicea received a fatal knife wound in the chest. Appellant, Whalen Laws, Jr., was charged with the murder. Following a jury trial, appellant was convicted of murder of the second degree. Post-verdict motions were denied, and appellant was sentenced to seven to twenty years imprisonment. In this appeal,*fn1 appellant contends that the trial court, by its questioning of a witness and by its warning the witness of the consequences of perjury, improperly pressured the witness to change his testimony. We agree,*fn2 reverse judgment of sentence and grant appellant a new trial.
During the presentation of the prosecution's case, Coy Coley III was called as a witness. Unexpectedly, Coley gave testimony favorable to the defense. In his testimony, he indicated that the person who stabbed the victim was not in the courtroom.*fn3 At appellant's preliminary hearing Coley
had identified appellant as the person who stabbed the victim.*fn4
Over defense objection, the court questioned Coley in the presence of the jury about his testimony that he did not see the perpetrator in the courtroom.*fn5 The court then excused
the jury, and the prosecutor read Coley his testimony from the preliminary hearing. The court asked Coley if he recalled his prior testimony. Coley said he did. The court then asked Coley if he was afraid of anything on the day of trial, or if anything else was preventing him from telling the truth at trial. After Coley responded that there was nothing preventing him from telling the truth, the court, over defense objection,*fn6 warned Coley of the consequences of perjury.*fn7 The court then asked Coley if there was anything preventing him from telling the truth at trial, and asked Coley if any threats or promises had been made to induce him to testify untruthfully. Coley again answered no. The court asked Coley, twice, if he was telling the truth at trial. Coley answered both times that he was telling the truth. The court then asked Coley if he was saying that his testimony at the preliminary hearing was not truthful, and asked him if he wanted to read his testimony from the preliminary hearing again.
After Coley read his testimony from the preliminary hearing, the court again asked him if he was under any threats or pressure to testify as he did before the jury. Coley again answered no. The court then asked Coley, over defense objection, if what he told the jury was the truth and if he
wanted to change that testimony now that he had read the notes of the preliminary hearing. Coley answered that he did not want to change his trial testimony. The court asked Coley, two more times, if he still maintained that his trial testimony was correct. After Coley answered affirmatively for the second time, the court asked Coley again if he wanted to change his trial testimony in any way. Coley said he did not. Before the jury was called back in, the court again warned Coley of the consequences of perjury.*fn8
The Commonwealth then was allowed to cross-examine Coley in the presence of the jury, and the prosecutor read Coley his testimony from the preliminary hearing.*fn9 Coley recanted his trial testimony and adopted his testimony from the preliminary hearing identifying appellant as the person who stabbed the victim.
In presiding over trial, the court has a paramount duty to maintain its impartiality, as well as a responsibility to respect the dignity of the witnesses. The court's power to question a witness, and to warn the witness of the consequences of perjury, should be used sparingly, and ...