No. 471 January Term, 1978, Appeal from the Judgment of the Superior Court (October Term, 1977, No. 340) Affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at Information 1673, March Term, 1976
John W. Packel, Chief, Appeals Div., Elaine DeMasse, Asst. Defender, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Victor Fortuno, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., concurred in the result. Nix, J., concurred in the result.
After a trial in the Court of Common Pleas of Philadelphia County, sitting without a jury, appellant Delores Lane was found guilty of simple assault. Post-verdict motions were denied, and appellant was sentenced to two years probation. An appeal was taken to the Superior Court, and that Court affirmed the judgment of sentence by a per curiam order dated July 12, 1978.*fn1 This Court then granted appellant's petition for allowance of appeal, which raises one issue concerning the trial court's limitation of appellant's cross-examination of the victim and her husband. Specifically, the court limited inquiry into the possibility of their maintaining a civil action for the damages sustained by the victim against the bus company that operated the bus on which the assault occurred.
"It is well established that the scope and limits of cross-examination are within the discretion of the trial judge and [the trial judge's exercise of judgment in setting those limits] will not be reversed in the absence of a clear abuse of that discretion, or an error of law." Commonwealth v. Greene, 469 Pa. 399, 404, 366 A.2d 234, 236 (1976) (citations omitted). In the instant case, the circumstances leading up to the trial judge's rulings, and the rulings themselves, are as follows:
The Commonwealth's chief witness was the seventy-six-year-old victim, Mrs. Florence Nelson. She testified that she and her husband were passengers on a bus travelling on Market Street in Philadelphia. They were seated directly behind the driver, and appellant, who was then 22 years of age, was standing in the aisle immediately to the right of the driver and conversing with him. Although the bus had many vacant seats, appellant maintained this position throughout the ride, creating an obstacle for passengers entering or exiting the bus.
The victim stated that when the bus arrived at the victim's destination, the victim's husband, a man 80 years of age, squeezed by appellant, exited the bus, and turned to help his wife down. As the victim attempted to get past appellant, she told the driver that appellant should not be permitted to stand next to him because appellant was blocking the aisle. Appellant then directed various profanities at the victim who responded by asking the driver for his number. Whereupon appellant attacked the victim, punching her in the face numerous times and knocking her to the floor, after which appellant began kicking the victim in the chest. The victim's husband attempted to board the bus and help his wife, but was kept at bay by the driver who then opened a door at the center of the bus through which appellant fled. Appellant immediately boarded a taxi cab and was apprehended by the police. As a result of the beating, the victim suffered severe bleeding from the eyes, nose, and mouth, various swellings and discoloration, and chest pains and breathing difficulties for a period of over one month.
After the victim had testified to these events and had been cross-examined at considerable length on that testimony, appellant's counsel asked the victim: "And you have consulted a civil lawyer in this case? You retained a civil lawyer in this case, haven't you?" Notes of Testimony, p. 42. The Commonwealth objected, and appellant's counsel stated that he was attempting to show through this line of questioning that the victim was considering a tort action against the bus company. The trial judge indicated that this would not surprise him and sustained the objection.*fn2 Appellant's counsel then asked the victim, "where did you first ...