No. 1728 October Term 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Phila. County, Trial Division, Criminal Section, Nos. 1410, 1412-15, 1417, Oct. Session 1976.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, submitted a brief on behalf of the Commonwealth, appellee.
Price, Spaeth and Lipez, JJ. Price, J., concurs in the result.
[ 273 Pa. Super. Page 510]
This is an appeal from judgment of sentence for burglary,*fn1 conspiracy,*fn2 and four counts of robbery.*fn3 Appellant has assigned three trial errors, which we shall consider in a somewhat different order than he presents them.
On September 27, 1976, a robbery occurred at the house of Gladys Drayton at 806 South 13th Street in Philadelphia. Deborah Battles testified that while watching television in the front room of the house, she saw four men, including appellant, enter the house and proceed to the dining room. She also testified that two of the men remained in the dining room during commission of the robbery, but that appellant was not one of the two. (N.T. 244-50) In the initial part of her testimony, Ms. Battles said that she had seen all four of the men before the date of the robbery:
Q: In fact, had you ever seen these persons before?
Later in her testimony, Ms. Battles said that she had never seen appellant before the date of the robbery. (N.T. 254)
[ 273 Pa. Super. Page 511]
Appellant was tried with two other defendants -- Steven A. Johnson and Van S. McWhorter. When counsel for co-defendant Johnson cross-examined Ms. Battles regarding the apparent inconsistency in her testimony as to when she had first seen appellant, the following occurred:
BY MISS DUFFY [counsel for co-defendant Johnson]:
Q. Miss Battles, did you testify at the last hearing we had, last time you were in this courtroom testifying, that you knew all four of them because you've seen all four men around?
A. I said I knew them, or did I say I seen them?
Q. You said you saw all four of them. Now, is it my understanding that today you're admitting that you did not see Parks [appellant] before?
Q. So that you weren't telling the truth when you testified at the last hearing, were you, Miss Battles?
A. It could be that I don't want to testify, period.
Q. Well, now, you indicated that --
MR. SNEE [counsel for appellant]: Objection, Your Honor.
MR. DIVITO [counsel for co-defendant McWhorter]: Objection, Your Honor. Can we see you at sidebar?
(A conference was held at sidebar as follows:)
MR. DIVITO: Your Honor, I think under the circumstances that perhaps a colloquy should be conducted of this witness at this time to further explore what she means by the statement that she doesn't -- "It could be that I don't want to testify." Certainly, this could be done out of the presence of the jury, and I think under the circumstances we should explore precisely what this means, and then, after that, determine a further course as to what instruction may be necessary to the jury.
THE COURT: If your objection is a request to colloquy this witness, it is overruled. That's what I understand your objection to be.
[ 273 Pa. Super. Page 512]
MISS DUFFY: But, Your Honor, she has identified everybody in our case. Why is she -- the only reason she would be reluctant to testify is because she's worried about -- she's committed herself to the Commonwealth and is now afraid to go back on it.
MR. KITROSSER [the assistant district attorney]: Then explore it.
THE COURT: Are you objecting, Miss Duffy?
MISS DUFFY: Am I objecting? Yes, ...