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COMMONWEALTH PENNSYLVANIA v. ROBERT GAY (01/04/88)

filed: January 4, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT GAY, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 934, 936, 937 May 1985.

COUNSEL

John Packer, Assistant Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.

Cirillo, President Judge, and Wieand and Watkins, JJ.

Author: Wieand

[ 369 Pa. Super. Page 342]

Robert Gay was tried by jury and was found guilty of aggravated assault, recklessly endangering another person, possession of an instrument of crime, and carrying a firearm without a license on a public street as a result of a nonfatal shooting during a group altercation at a carnival in West Philadelphia. Alice Brown, who was injured, was running away from the altercation at the time of the shooting and did not know who in the crowd had drawn a gun and shot her. Trevor Frisby and Keith Warren identified Gay as the person who had fired the gun. At trial, the defense offered to show that Frisby and Warren, who were friends, were both on juvenile probation. The purpose of this evidence was to show a motive for their testifying on behalf of the Commonwealth and minimizing their own involvement in the fracas. The trial court sustained prosecution objections and disallowed such evidence. On direct appeal, Gay contends that this was error. We are constrained to agree. Therefore, we reverse and remand for a new trial.

As a general rule, a witness in a criminal trial may not be impeached by a showing that he has a juvenile record. Commonwealth v. Upchurch, 355 Pa. Super. 425, 434, 513 A.2d 995, 999 (1986). See also: 42 Pa.C.S. ยง 6354(b). However, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court of the United States

[ 369 Pa. Super. Page 343]

    held that the Sixth Amendment right of confrontation requires that a defendant be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias derived from the witness's probationary status as a juvenile. Pennsylvania has followed the holding in Davis v. Alaska, supra. Most recently, the Supreme Court of Pennsylvania articulated the rule to be followed in this Commonwealth in Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), as follows:

[W]henever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.

The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury's determination of the case.

Id., 511 Pa. at 224-225, 512 A.2d at 631-632 (footnote omitted). However, the possibility of motive or bias must be more than mere speculation. Commonwealth v. Mines, 321 Pa. Super. 529, 533, 468 A.2d 1115, 1117 (1983). There must be a logical connection between the facts to be proven and the inference to be drawn from the facts. Commonwealth v. Case, 322 Pa. ...


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