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December 30, 1983



Before Wieand, Cirillo and Johnson, JJ. Wieand, J., files a Dissenting Opinion.

Per Curiam: AFFIRMED.

WIEAND, J., files a Dissenting Opinion.



I respectfully dissent. The Commonwealth's testimonial reference to a polygraph examination administered to the witness, Michael Ransom, was improper and prejudicial and requires that a new trial be granted.

On the evening of April 3, 1981, Vincent Stewart and Steven Conyers encountered a group of persons consisting of Russell Williams, Wayne Epps, Michael Ransom and Loreese Alli, outside a bar in Harrisburg. After hostile words were exchanged, both groups left the area to attend a party. Williams, who was walking ahead of Stewart and Conyers, turned around and fired a handgun. The bullet struck and killed Stewart. Epps and Alli gave statements to the police identifying Williams as the killer; Alli also identified Williams as the killer at the preliminary hearing. Ransom gave a statement in which he said that he did not know who had shot Stewart. After he took a polygraph exam and was told that he was being deceptive, Ransom gave the police a statement, on April 7, 1981, in which he said that Williams had fired the fatal shot.

At trial, Williams was identified as the killer by Steven Conyers.Epps, however, testified that he could not recall giving to police the information contained in his signed statement and did not remember whether Williams was present at the time of the shooting. Ransom testified that Williams did not shoot Stewart because he, Ransom, was standing beside Williams at the time of the shooting. He said he did not know the identity of the person who had done the shooting. Alli refused to testify on grounds that her testimony might tend to incriminate her, and she was allowed by the court to step down. In lieu of her testimony, the Commonwealth was permitted to read into evidence the testimony which she had given at the preliminary hearing. Appellant does not challenge the correctness of this ruling.

The Commonwealth pleaded surprise with respect to the testimony of Epps and Ransom and requested leave to cross-examine these witnesses. The defense objected to such cross-examination but only on grounds that the Commonwealth had not truly been surprised. In fact, the defense argued, the Commonwealth knew or should have known that Epps and Ransom would be hostile and uncooperative. The court overruled these objections and permitted the Commonwealth to cross-examine its own witnesses.

Whether a party should be permitted to cross-examine its own witness is generally committed to the discretion of the trial court. Commonwealth v. Thomas, 459 Pa. 371, 379, 329 A.2d 277, 280 (1974) (plurality opinion); Commonwealth v. Matthews, Pa. Super. , , 460 A.2d 362, 364 (1983); Commonwealth v. Graves, Pa. Super. , , 456 A.2d 561, 568 (1983). In order for a party to plead surprise and cross-examine his own witness, this Court said in Commonwealth v. Barber, 275 Pa. Super. 144, 418 A.2d 653 (1980), "the following requirements must be met: (1) the testimony given by the witness must be unexpected; (2) the testimony must be contradictory to statements the witness has made earlier; (3) the testimony must be harmful to the party calling the witness and beneficial to the opposing side; and (4) the scope of his cross-examination may not be excessive. Commonwealth v. Thomas, [ supra at 379-380, 329 A.2d at 281]; Commonwealth v. Duffy, 238 Pa. Super. 161, 167-8, 353 A.2d 50, 54 (1975)." Id. at 151-152, 418 A.2d at 657.

However, the rule which holds that a party calling a witness vouches for his veracity and cannot impeach him "has been considerably relaxed to prevent injustice and the tendency of the courts is to permit parties to show the truth without strict regard to technicalities." Commonwealth v. Smith, 424 Pa. 544, 548, 227 A.2d 653, 655 (1967) (emphasis deleted). Thus,

"Pennsylvania courts have frequently permitted parties to contradict or impeach witnesses called by them without a strict requirement of surprise when the interests of truth and justice seem to require it. See, e.g., Commonwealth v. Smith, supra; Commonwealth v. Deitrick, 221 Pa. 7, 70 A. 275 (1908); Commonwealth v. Staino, 204 Pa. Super. 319, 204 A.2d 664 (1964); Commonwealth v. Gomino, [200 Pa. Super. 160, 188 A.2d 784 (1963)]; Commonwealth v. Gurreri, 197 Pa. Super. 329, 178 A.2d 808 (1962); Commonwealth v. Bartell, 184 Pa. Super. 528, 136 A.2d 166 (1957); Commonwealth v. Bowers, 182 Pa. Super. 628, 127 A.2d 806 (1956)."

Commonwealth v. Gee, 467 Pa. 123, 137, 354 A.2d 875, 881 (1976) (plurality opinion).

The trial court did not err in overruling the objection voiced by defense counsel. The witnesses had given written, signed statements identifying Williams as the person who fired the handgun killing Stewart. The Commonwealth could rely on those statements; it was not required to forego the search for truth because these witnesses became hostile and uncooperative after their statements had been given.

Appellant's objections to the prosecution's cross-examination of Epps and Ransom were specific. All other possible grounds for objecting, therefore, were waived. Commonwealth v. Witherspoon, 481 Pa. 321, 324 n.4, 392 A.2d 1313, 1314 n.4 (1978); Commonwealth v. Stoltzfus, 462 Pa. 43, 60, 337 A.2d 873, 881 (1975); Commonwealth v. McNeal, 456 Pa. 394, 398, 319 A.2d 669, 672 (1974); Commonwealth v. Budd, 443 Pa. 193, 195, 278 A.2d 879, 880 (1971); Commonwealth v. Ridall, 280 Pa. Super. 316, 320, 421 A.2d 740, 743 (1980). The trial court was not called upon to decide and I shall express no opinion whether the testimony of Epps, who, at trial, couldn't recall his statement to the police and who couldn't remember whether Williams had committed the shooting, gave testimony that was harmful to the Commonwealth and beneficial to the defense.

A. He said that Russell Williams turned around and he didn't intend to hit no one, but Russell Williams fired the gun.

*fn2 I agree fully with the majority that the trial court did not err in denying a motion for mistrial when the jury observed appellant being brought into the courtroom between two deputies. I also agree that evidence of appellant's flight from the police was relevant and properly received.

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