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COMMONWEALTH PENNSYLVANIA v. ANDREW TAYLOR (11/06/81)

SUPERIOR COURT OF PENNSYLVANIA


November 6, 1981

COMMONWEALTH OF PENNSYLVANIA
v.
ANDREW TAYLOR, APPELLANT

NO. 705 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, Philadelphia County at Nos. 1429, 1431, 1432, 1433 April Term, 1974.

Before Brosky, Johnson and Popovich, JJ.

MEMORANDUM OPINION:

Appellant appeals from the lower court's Order, dated March 6, 1980, denying his request for relief pursuant to the Post-Conviction Hearing Act (PCHA).*fn1 We affirm the Order of the court below.

The relevant facts, appearing in the record, are as follows: Appellant's first trial ended in a mistrial. Thereafter, on April 4, 1975, appellant was found guilty by a jury of Attempted Kidnapping (18 Pa.C.S.A. §§ 2901 and 901), Criminal Conspiracy (18 Pa.C.S.A. § 903), Simple Assault (18 Pa.C.S.A. § 2701), Aggravated Assault (18 Pa.C.S.A. § 2702) and Robbery (18 Pa.C.S.A. § 3701). After post-trial motions were denied, appellant was sentenced 10 to 20 years for Robbery and concurrent terms of 5 to 10 years for Attempted Kidnapping and Criminal Conspiracy. Sentence was suspended on the remaining charges. We affirmed the appellant's appeal from the Judgment of Sentence in a per curiam order, Commonwealth v. Taylor, Pa. Super. , 359 A.2d 924 (1976), and a Petition for Allowance of Appeal was denied on August 3, 1976. Id.

On November 9, 1977, appellant filed a pro se PCHA petition. The lower court appointed counsel and an amended petition was filed, a hearing was held and the relief requested was denied. This appeal followed.

On appeal, appellant contends that trial counsel was ineffective for: 1) failing to "cite authority" to the lower court for the proposition that a witness can be impeached by prior inconsistent testimony; and 2) for "not submit[ting] written points for charge to the trial judge to counter those proposed by the prosecution."*fn2 (Appellant's Brief at 5 & 6)

In order to determine whether counsel's assistance was effective, we must be "able to conclude the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Preceding such inquiry, however, this Court must first decide if the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Jennings, Pa. Super. , 427 A.2d 231 (1981). If the underlying issue is found to be of arguable merit, then we have to determine whether the course chosen by counsel had some reasonable basis aimed at promoting his client's interests. Commonwealth v. Jennings, supra.

As for appellant's initial averment, the facts are these: At the second trial, appellant's counsel was cross-examining the victim, a Mr. Dykes. In the course thereof, the following ensued:

"[APPELLANT'S ATTORNEY:]

Q Mr. Dykes, you were reluctant to come in and testify in this case, weren't you?

A In a way, yeah.

[COMMONWEALTH'S ATTORNEY]: I didn't hear the answer.

THE WITNESS: Yes.

THE COURT: He says in a way, yes.

Q And isn't it a fact that you would say anything to get off that stand?

[COMMONWEALTH'S ATTORNEY]: Objection.

THE COURT: Oh, no, overruled.

A No, I wouldn't.

Q You wouldn't?

A No." (N.T. 560-561)

A sidebar followed the preceding questioning. At that time, with the jury recessed, counsel for appellant informed the court that he wished to prove that Mr. Dykes, at the preliminary hearing, answered an identical question in a contrary manner, to-wit:

"'[Q] ... Why at 61st and Thompson did you say the other [assailant, rather than the appellant,] had you around the neck?

[MR. DYKES:]

[A] ... Because at 61st and Thompson I was feeling bad, I wanted to say anything to get it over with. Do you understand?

[Q] So if you wanted to get something over, you just say anything?

[A] That is right.

[Q] Okay. Fine.

[A] I was saying anything just to get it over with.'" (N.T. 564-565)

The trial judge ruled that the proffered testimony was neither relevant to the issue of identification nor contradictory to the subsequent statement made in open court. Therefore, he concluded that it would be improper to prove the existence of such remark by the witness on cross-examination, since it was collateral and irrelevant. (Trial Court Opinion at 26) This exact issue was raised in post-trial motions and denied. (Defendant's [Appellant's] Supplemental Motion for a New Trial and In Arrest of Judgment, Section II, Point 5).*fn3

It has always been understood that a party to a proceeding has a right to impeach a witness for the other party by presenting prior inconsistent statements of the witness. Commonwealth v. Rothman, 168 Pa. Super. 163, 77 A.2d 731 (1951). We do not, however, permit admission of such statements if they are concerned with collateral matters. In re Farms, 216 Pa. Super. 445, 268 A.2d 170 (1970). The reason being, "'[s]ince the purpose of the cross-examination and impeachment is... to induce the jury to disbelieve the testimony of the witness--there must be something in the witness' testimony, which if not disbelieved by the jury, will be hurtful or injurious to the party calling him.'" (Emphasis in original) Commonwealth v. Turner, 389 Pa. 239, , 133 A.2d 187, 194 (1957).

It cannot be discounted that the question of how closely prior statements must be related to the subject of trial in order to make them available for purposes of cross-examination is a difficult question to resolve. Commonwealth v. Kubacki, 208 Pa. Super. 523, 224 A.2d 80 (1966). Nonetheless, we have held that:

"'No witness can be contradicted on everything he testifies to in order to "test his credibility". The pivotal issues in a trial cannot be "sidetracked" for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial. The purpose of trials is not to determine the ratings of witnesses for general veracity. A witness can be contradicted only on matters germane to the issue [being] tr[ied].There is no rule more firmly established than this: "No contradiction shall be permitted on collateral matters."'" (Citations omitted) (Emphasis in original) Commonwealth v. Kline, 163 Pa. Super. 408, , 62 A.2d 73, 75 (1948); accord Commonwealth v. Kettering, 180 Pa. Super. 247, 119 A.2d 580 (1956); 2 Henry, Pennsylvania Evidence, §§ 801 and 802 (1953).

Instantly, the trial court decided to limit appellant's counsel's cross-examination of Dykes to whether he was testifying merely to dispense with the proceedings, and that he would say anything to get off the stand. (N.T. 566) Notwithstanding that the right to "'cross-examination is encompassed by the accused's right of confrontation in a criminal case, as protected by the Sixth Amendment, "the extent of cross-examination is within the discretion of the trial court."'" (Citations omitted) Commonwealth v. Lee, 262 Pa. Super. 280, , 396 A.2d 755, 761 (1978); Berliner v. Schoenberg, 117 Pa. Super. 254, 258-259, 178 A. 330, (1917) ("'"It is a well settled rule that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony."'"). Unless there has been a clear abuse of such discretion, the court's ruling will not be disturbed. See Commonwealth v. Varano, 258 Pa. 442, 102 A. 131 (1917); 2 Wharton's Criminal Evidence, § 431 (13th Ed. 1972); see generally Commonwealth v. Lee, supra.

As was stated by the PCHA court:

"The fact that the witness was currently willing to testify [was] not inconsistent with a prior reluctance to testify and thus this testimony did not qualify as a prior inconsistent statement. Trial counsel was permitted wide latitude in impeaching the witness with his prior testimony and there [was] no indication that the trial judge abused his discretion in restricting the attempted impeachment by the prior testimony to inconsistent statements and relevant issues. Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978). We therefore find that the underlying claim lacks arguable merit and need not consider counsel's reasons for failing to cite case law." (PCHA Court Opinion at 5-6)

We agree with the conclusion of the PCHA court, as set forth in its Opinion, a portion of which appears supra.

Appellant's second contention is equally unpersuasive. There is no duty imposed upon counsel to submit written points for charge. Pa.R.Crim.P. 1119(a) provides that "any party may submit to the trial judge written requests for instructions to the jury." As a result, such submission is not mandatory; rather, it is directory. Commonwealth v. Marshall, Pa. Super. , 417 A.2d 681 (1979).

Counsel's decision to dispense with the filing of written instructions did not prejudice the appellant since, at a sidebar discussion with the trial judge and the Commonwealth's attorney, counsel "orally" recommended everything to the trial judge he felt was necessary to the case. Commonwealth v. Marshall, supra (although Rule 1119(a) indicates a clear preference for written requests, nothing in the Rule itself bars a trial judge from entertaining oral requests for instructions nor do any cases so hold). In other words, he did not feel that there were any additional points for charge that he should have recommended which would have been read had he submitted them in writing to the trial court. (N.T. PCHA Hearing at 32-33) After a review of the transcript regarding the trial judge's charge to the jury, we agree.

Furthermore, a review of the record indicates that trial counsel was successful in having the Commonwealth's charge on alibi denied and obtaining a directed verdict on the third count of the indictment. (N.T. 1165-1167) Also, appellant does not assert now that the instructions read by the trial judge were incorrect. Consequently, based on the preceding, we find that counsel was not ineffective for failing to submit written points for charge. See generally Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

We note that appellate counsel raises for the first time on appeal that there was evidence of a discrepancy in the testimony of the victim which "was not brought to the jury's attention" by trial counsel. (Appellant's Brief at 11) Aside from the fact that such averment is without merit, (see N.T. 1115-1118), appellant's failure to raise such theory in his PCHA petition as a basis for relief precludes him from raising it now. See Commonwealth v. Polof, 238 Pa. Super. 565, 362 A.2d 427 (1976).

Order of the lower court affirmed.


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