Appeal from the Judgment of Sentence Docketed March 29, 1989, in the Court of Common Pleas of Philadelphia County, Criminal, No. 8710-1117.
Mitchell S. Strutin, Philadelphia, for appellant.
Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
Rowley, Olszewski and Hester, JJ.
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This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County after conviction for robbery of the first degree. On appeal, the following issues are raised:
I. The trial court erred when it precluded trial counsel from cross-examining police officer Long concerning the police department's internal affairs bureau's investigation of the proceeds of the robbery which were missing so as to demonstrate bias or motive to fabricate testimony.
II. The trial court erred when it refused to instruct the jury concerning the crime of robbery as a felony of the third degree.
III. The trial court erred when it refused to instruct the jury in accordance with the defendant's request concerning the use of prior inconsistent statements as substantive evidence.
IV. The defendant is entitled to a new trial as a result of prosecutorial misconduct.
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V. The trial court erred when it permitted testimony which stigmatized the defendant.
VI. The trial court improperly questioned commonwealth witnesses so as to rehabilitate the witnesses and/or express the court's opinion concerning the credibility of the witnesses.
Brief of appellant at i. For the following reasons, we affirm.
The facts of the instant case were accurately summarized in the opinion of the trial court as follows:
On September 29, 1987 at approximately 2:30 p.m. in the vicinity of 3300 Ridge Avenue, Philadelphia, Zuline Harrison was thrown to the ground and her pocketbook was taken from her.
At trial, the Commonwealth first presented the testimony of Lance Spencer, who stated that on the date and time in question he was travelling on the East River Drive in the vicinity of 33rd Street when he observed a struggle. He slowed his vehicle and observed the defendant push a woman to the ground, grab her purse and begin to run into the woods of Fairmount Park. He further testified that he stopped his vehicle, and began to chase the defendant for approximately 200 feet prior to apprehending him and detaining him for police. Mr. Spencer also stated that he never lost sight of the defendant during the chase and observed him going through the pocketbook while running. He further observed him taking an undetermined amount of paper money from the bag and placing it in his pants pocket. During his testimony Mr. Spencer identified the defendant, Edward Blount, as the man he observed struggling with the woman whom he also identified.
The Commonwealth next offered the testimony of Robert Swinton, who stated he was present in the car with his friend, Lance Spencer, when they observed the struggle. Mr. Swinton also identified the defendant, Edward Blount, as the same man he observed taking a woman's handbag. He also identified the complainant as the same
[ 387 Pa. Super. Page 608]
woman he encountered that day. His testimony in all other aspects was cumulative and corroborated that of Lance Spencer.
The testimony of Officer Paul Long was next offered by the Commonwealth. Officer Long stated that he was on routine patrol when he was approached by a park worker. As a result of that conversation, he proceeded to an area approximately sixty yards downhill from his present position where he observed two men restraining a third man who was face down on the ground. At that time the officer placed the third male under arrest and called for back-up assistance. From underneath the defendant's body a pocketbook was recovered which the Officer testified he returned to the complainant. Also found in the defendant's front left pocket was a large bundle of United States currency which the officer testified he replaced into the defendant's pocket.
For the defense, Detective Fred Litchendorf was called to testify that as part of the investigation in this case he interviewed Mr. Lance Spencer. The substance of that interview as recorded on Police Report 75-49 was read into evidence. This statement was offered to show that Mr. Spencer's prior testimony that he witnessed the defendant push his victim to the ground was not recorded in that statement. Detective Litchendorf was also called to testify regarding the search of the defendant, which he conducted at police headquarters as regarding the fact that no money was found on his person at that time. The defense presented no further evidence.
Trial court opinion at 1-3.
Following trial before a jury, appellant was convicted of first degree robbery. Post-trial motions were filed and denied, and appellant was sentenced to a term of imprisonment of five-to-ten years. A petition for reconsideration of sentence was filed and denied. Thereafter, appellant filed an appeal to this Court. New counsel was appointed and, pursuant to the court's direction, filed a statement of matters complained of on appeal. This statement raised a
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number of matters including an alleged ineffectiveness on the part of trial counsel. Pursuant to this Court's remand order of October 12, 1988, the trial court convened a hearing on this claim. This case was again remanded by this Court by order dated March 8, 1989, so that appellant, by agreement of counsel and the trial judge, be resentenced to a term of incarceration of four-to-ten years for robbery as a felony of the second degree.
Appellant initially contends that the trial court improperly precluded cross-examination of the arresting officer regarding the apparent loss of the money that appellant stole from the victim. He argues that he should have been permitted to establish, by way of cross-examination, that the Internal Affairs Bureau (IAB) of the Philadelphia Police Department initiated an investigation. By refusing to allow him a complete examination in this regard, appellant claims he was deprived of his opportunity to establish that the police officer had a motive to testify falsely against him in order to protect himself against any possible sanction by the IAB.
The Commonwealth counters that appellant's argument is flawed in several respects. First, it claims that the court did in fact allow defense counsel to establish the occurrence of the IAB investigation through the direct examination of the detective assigned by the Bureau to conduct the inquiry. Second, it argues that defense counsel made specific note during closing argument of the investigation and the possible motive of the police officer to testify falsely. Moreover, the Commonwealth claims that the facts of the instant case preclude any inference of a motive to testify falsely on the part of the police officer. Finally, the Commonwealth asserts, arguendo, that any error in this regard was harmless and could in no way have contributed to the verdict.
It is well-settled that a defendant has the right to establish through cross-examination that an adverse witness has a bias against him, or at least an interest in the outcome of the trial. It is, however, equally clear that the scope of such examination is controlled by the discretion of the trial judge whose decision will not be overturned absent
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palpable error. Commonwealth v. Black, 337 Pa. Super. 548, 487 A.2d 396 (1985); Commonwealth v. Ross, 345 Pa. Super. 571, 498 A.2d 972 (1985). Moreover, the order through which a party seeks to prove his case is also a matter within the sound discretion of the trial judge and will be upheld on appeal absent an abuse thereof. Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988); Commonwealth v. Mokluk, 298 Pa. Super. 360, 444 A.2d 1214 (1982). With these standards in mind, we must reject appellant's initial claim.
Instantly, appellant's contention that he was unable to raise the inference of bias on the part of Officer Long is belied by the record. The trial court did, in fact, allow appellant to establish the occurrence of the IAB investigation through his direct examination of the assigned detective, who was called as a defense witness at trial. Neither the detective, nor the prosecution denied the existence of the investigation, and the defense took full advantage of this fact in his summation to the jury. Moreover, the evidence adduced at trial precludes any inference of false testimony on the part of Officer Long. Lance Spencer, a witness for the Commonwealth, testified that he had seen appellant take a wad of money from the victim's purse and place it in his pocket. This testimony was bolstered by Officer Long, who testified that he had removed the wad and immediately replaced it in appellant's pocket. Detective Litchendorf, in turn, related his interview of Officer Long shortly after the arrest, in which Long had stated that he failed to seize the money. Officer Long's admission triggered ...