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filed: July 1, 1983.


NO. 2682 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of November 6, 1980 in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 602-604 February, 1979


John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Beck, JJ. Spaeth, J., concurs in the result.

Author: Beck

[ 316 Pa. Super. Page 48]

Appellant has filed a direct appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, alleging that the trial judge improperly refused to declare a mistrial or issue a cautionary instruction to the jury regarding a Commonwealth witness's explanation of his prior inconsistent statements and that the trial judge incorrectly charged the jury concerning the definition of reasonable doubt. We affirm the decision of the trial court.

On the evening of September 30, 1978, the victim/complainant attended a party at which Appellant was also present. After being at the party for approximately ninety minutes, the complainant departed and observed that Appellant left the party immediately after she did.

While walking to her car the complainant noticed that Appellant was walking behind her. Upon entering the driver's side of her car the complainant saw that appellant was sitting in the passenger's seat of her car. The complainant ordered Appellant to leave whereupon Appellant began beating the complainant about her head and face. The complainant managed to escape from her car but was pursued and caught by Appellant. The scuffle between the complainant and Appellant outside the complainant's car drew the attention of two men who approached the struggling pair. However, Appellant warned the two men not to interfere, and following a brief discussion with Appellant the men departed.

Appellant then dragged the complainant to her car, beat her, raped her, and stole $35.00 from her pocketbook. As a result of the severe beating the complainant suffered a dislocated jaw, a fractured arm, two black eyes, and a cut lip which necessitated ten sutures.

[ 316 Pa. Super. Page 49]

Subsequently, Appellant was charged with rape, aggravated assault, simple assault, and robbery. After the Commonwealth deleted the charge of simple assault, the matter proceeded to trial before a jury which found Appellant guilty of all three remaining charges. In accordance with Pa.R.Crim.P. 1123 Appellant filed post-verdict motions.

[B]efore post-verdict motions were argued, defense counsel contended that the trial judge had indicated that he was going to impose a maximum sentence before having reviewed the pre-sentence and psychiatric reports and therefore asked the trial judge to recuse himself . . . . [I]n order to eliminate any possible complaints about the sentence imposed . . ., the trial judge caused a court en banc to be empanelled and thereafter recused himself from considering the motions and did not participate in the sentencing . . . . The . . . judges of the court en banc denied the post-verdict motions, and then reviewed the pre-sentence and psychiatric reports. They imposed a sentence of ten to twenty years on the rape bill . . . and a consecutive ten to twenty years on the robbery bill. They ruled that the conviction for aggravated assault merged with the robbery conviction and therefore no further sentence was imposed.

(Trial court opinion at pp. 1-2 (footnote deleted).)

On appeal Appellant's first argument is that the trial judge should have declared a mistrial or cautioned the jury not to infer Appellant's guilt from the Commonwealth witness's explanation of the inconsistencies between the pre-trial and at-trial statements made by the witness.

During direct examination at trial the witness testified that he was one of the two men who spoke with Appellant as Appellant struggled with the complainant outside the complainant's car. The witness positively identified Appellant as the complainant's assailant.

However, on cross-examination the witness admitted that during pre-trial questioning by the police, the trial attorneys, and a defense investigator, he (1) had asserted his inability to identify the assailant positively because he had

[ 316 Pa. Super. Page 50]

    viewed the attack from the porch of his home which was one-half block from the scene of the assault; (2) had denied speaking with the assailant during the commission of the crime, and (3) had claimed never to have seen the assailant before the time of the attack.*fn1 Moreover, the witness acknowledged not contacting the police after discovering that the complainant had been the victim of a crime rather than a participant in a domestic squabble.

Responding to the witness's answers on cross-examination, defense counsel attempted to impeach the witness's credibility by suggesting that the contradictions in the witness's pre-trial and at-trial statements indicated that the witness had fabricated the identification testimony offered at trial on direct examination.

Consequently, on redirect examination counsel for the Commonwealth found it necessary to rehabilitate the witness by establishing the reasons underlying the witness's contradictory pre-trial and at-trial statements. The witness explained that his remarks before trial resulted from his hesitancy to "get involved," his concern that Appellant might hold the witness or the witness's family responsible for a conviction ("put [the witness's] . . . family or [the witness] in debt"), and his observation that Appellant's family were "kind of hard people" who, he feared, might "com[e] threatening." (N.T. at 108-11.) Additionally, the witness stated that he had told the truth at trial because he "was tired of lying." (N.T. at 109.)

In general, "'threats by third persons against . . . witnesses are not relevant [and thus not admissible into evidence] unless . . . the defendant is linked in some way to the making of the threats.'" Commonwealth v. Carr, 436 Pa. 124, 127, 259 A.2d 165, 167 (1969) (citation omitted). Nevertheless, an exception to the rule exists where the evidence in question was not offered to prove the accused's

[ 316 Pa. Super. Page 51]

    guilt "but to explain a [witness's] prior inconsistent statement." Carr, 436 Pa. at 127, 259 A.2d at 167; Washington v. State of Maryland, 293 Md. 465, 445 A.2d 684 (1982) (citing Carr).

In the present case the Commonwealth witness revealed his subjective fear that Appellant or Appellant's family might threaten him or his family if he testified against Appellant. The witness did not intimate that he had actually received threats from any source. Furthermore, the testimony concerning possible threats was not introduced to establish Appellant's guilt but was adduced to reconcile the inconsistencies in the witness's pre-trial and at-trial statements. Therefore, the witness's testimony on redirect examination was not prejudicial to Appellant's case and did not require the declaration of a mistrial. See Commonwealth v. Stewart, 304 Pa. Super.Ct. 382, 450 A.2d 732 (1982).

Alternatively, Appellant maintains that if the admission of the witness's statements on redirect examination was proper, then the trial judge should have instructed the jury not to consider such statements as evincing Appellant's guilt.

In Carr the Pennsylvania Supreme Court held that if an accused believed "that the jury would be inclined to consider [a] threat as relevant to the issue of his guilt, . . . he could . . . request[] the court to give a cautionary instruction." Id. 436 Pa. at 128, 259 A.2d at 167. Appellant asserts that through his counsel he requested a cautionary instruction and was denied same.

The record shows that after the Commonwealth witness had stated on redirect examination that he had failed to report the truth prior to trial because he feared possible threats from Appellant's family, the trial judge called the prosecuting and defense attorneys to a side bar conference held outside the presence of the jury. During the conference the following colloquy occurred after the court stenographer

[ 316 Pa. Super. Page 52]

    read the witness's testimony concerning Appellant's family:

DEFENSE COUNSEL: I object to [the witness's testimony regarding possible threats from Appellant's family] and I move for a mistrial.

THE COURT: . . . Your motion for a mistrial is denied . . . .

DEFENSE COUNSEL: Then I would ask the court as a cautionary instruction . . . to instruct the Jury that . . . there has [ sic ] been absolutely no threats by the defendant [Appellant] or the defendant's family to this witness at any time.

THE COURT: I don't know that that is so.

THE COURT: . . . I deny your [defense counsel's] request.

(N.T. at 112-13.)

Thus, contrary to Appellant's assertion, Appellant's counsel did not ask that the jury be instructed to disregard the Commonwealth witness's explanation of his contradictory pre-trial and at-trial statements as bearing upon Appellant's guilt or innocence. "Having failed to do so, [Appellant] has no legitimate complaint about the admission of this evidence, clearly relevant to explain the prior inconsistent statement[s]." Carr, 436 Pa. at 128, 259 A.2d at 167.

Appellant's final argument on appeal is that the trial judge incorrectly defined the standard of reasonable doubt for the jury.

The trial court's charge included the following definition of reasonable doubt:

[T]he defendant [Appellant] . . . is presumed to be an innocent man . . . . The presumption of innocence remains with him until and unless you are convinced of his guilt beyond a reasonable doubt.

[ 316 Pa. Super. Page 53]

. . . .

A reasonable doubt is an honest and genuine doubt arising solely from the evidence or the lack of evidence and nothing else.

(N.T. at 43-45 (emphasis added).)

Although the trial court's charge contained all the essential language recommended by the Pennsylvania Supreme Court in Commonwealth v. Donough, 377 Pa. 46, 51-52, 103 A.2d 694, 697 (1954), Appellant contends nevertheless that reasonable doubt should have been explicated by the word "hesitate" instead of the word "restrain."*fn2

Initially, we note that the trial court's charge incorporated both the word "hesitate" and the word "restrain" and that the Pennsylvania Supreme Court has approved both words in jury instructions on reasonable doubt.*fn3 Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); compare Donough with Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398 (1939) (Donough accepts "restrain" whereas Kluska accepts "hesitate.").

[ 316 Pa. Super. Page 54]

Furthermore, since the Pennsylvania Supreme Court has sanctioned both words, this court has repeatedly refused to prefer either word. Commonwealth v. Poindexter, 301 Pa. Super.Ct. 454, 447 A.2d 1387 (1982); Commonwealth v. Rozanski, 289 Pa. Super.Ct. 531, 433 A.2d 1382 (1981); Commonwealth v. Boone, 287 Pa. Super.Ct. 1, 429 A.2d 689 (1981), and Commonwealth v. Starkes, 268 Pa. Super.Ct. 108, 407 A.2d 853 (1979), allocatur denied, October 22, 1979.

Therefore, in charging the jury, the trial judge properly defined the standard of reasonable doubt.

Accordingly, we affirm the judgment of sentence of the court of common pleas.

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