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November 18, 1997


Appeal from the Judgment of Sentence Dated September 26, 1996, In the Court of Common Pleas of Luzerne County, Criminal No. 2626 of 1995. Before CIAVARELLA, J.

Before: Cavanaugh, Beck, and Brosky, JJ. Opinion BY Beck, J.

The opinion of the court was delivered by: Beck


Filed November 18, 1997

The single issue before this court is whether a prosecution witness may be cross-examined with regard to his or her hope for favorable treatment on pending criminal charges in another jurisdiction. We hold that such cross-examination is proper but that its preclusion in this case was harmless error. Therefore, we affirm the judgment of sentence.

Appellant was convicted of Possession with Intent to Deliver and related charges in connection with his drug dealing activities in Luzerne County. Police learned of appellant's cocaine enterprise from Shereese Gregory, the mother of one of appellant's children. On her own initiative, Ms. Gregory contacted police, informed them of appellant's illegal activities and removed from appellant's residence drugs and paraphernalia to substantiate her allegations. At trial, Ms. Gregory testified at length regarding appellant's modus operandi in securing drugs in New York, transporting drugs to Wilkes Barre, employing assistants to aid his operation and selling drugs from several different locations in town. She also testified about appellant's purchase of cars, clothing, guns and other items with proceeds from his drug operation as well as the fact that appellant often bought these goods in the names of other individuals in an effort to shield his assets. Despite the fact that Ms. Gregory was directly involved in appellant's illicit drug business for a period of time, her own actions triggered appellant's arrest and she became the primary witness against him at trial.

At trial, appellant's attorney sought to question Ms. Gregory with respect to her probationary status in Philadelphia County on charges of Endangering the Welfare of Children and Recklessly Endangering Another Person. In addition, counsel requested permission to cross-examine Ms. Gregory regarding theft charges pending against her in Philadelphia. Counsel's purpose was to show Gregory's bias and/or motive to testify against appellant. The Commonwealth objected, arguing that since the probation and the pending charges originated in another county, the witness could not be questioned about them. The trial court agreed and precluded the cross-examination. The issue is now before us on appeal.

In reviewing a trial court's order regarding the scope and limits of cross-examination, we reverse only where a clear abuse of discretion or error of law has been established. Commonwealth v. Buehl 510 Pa. 363, 508 A.2d 1167, 1179 (1986), cert denied, 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187 (1988). The right of cross-examination is the primary component of a criminal defendant's constitutional right to confront witnesses against him. See Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974); Commonwealth v. Robinson, 507 Pa. 522, 491 A.2d 107 (1985).

The rule with respect to cross-examination of a prosecution witness for bias initially was addressed in Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). There, the court held that a witness under indictment for the same crime as the defendant against whom he is testifying may be cross-examined about the indictment so that the jury can evaluate whether the witness is seeking favorable treatment in his own case. In Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973), the court extended Ross to cover those circumstances where the possibility of favorable treatment may already have occurred. The Coades court held that a prosecution witness could be cross-examined about his indictment for the same crime despite the fact that the charges had been nolle prossed.

In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), our supreme court was faced with a variation of the circumstances in Ross and Coades. Evans presented the case of two defendants charged with murder. At the time of trial, the primary prosecution witness, David Crater, faced not only charges in connection with the murder, but also faced over ten unrelated burglary and conspiracy charges within the same county. The trial court permitted Crater to be cross-examined about the murder charges but precluded counsel from questioning him about the unrelated charges. On appeal, our supreme court granted a new trial and held that a prosecution witness under indictment for charges unrelated to the crime at issue, but within the same jurisdiction, could be cross-examined regarding the potential for favorable treatment. The Evans court recognized that even if the prosecutor has made no promises to the witness, the witness may still "hope" for favorable treatment by testifying for the Commonwealth; therefore, the criminal defendant against whom the witness is testifying is entitled to bring that fact to the attention of the jury via cross-examination of the witness. Id. at , 512 A.2d at 631-32.

One of the very same defendants who was granted a new trial in Evans was again the object of the court's attention in Commonwealth v. Nolen, 535 Pa. 77, 634 A.2d 192 (1993). As it had in the first trial, the prosecution in the second trial presented the testimony of a witness who had a criminal record. This time the witness had no charges currently pending against him. However, at the time he agreed to testify against Nolen, he faced charges in the same county as well as charges in Virginia. By the time of Nolen's trial, the charges the witness faced in the same county had been reduced and disposed of and charges the witness faced in Virginia had been dropped.

Relying on its decisions in Evans and Coades, the Nolen court held that it was error for the trial court to refuse Nolen's request to cross-examine the witness about his charges. The court reasoned:

From the facts presented here, it can easily be inferred that at the time Boyer [the witness] agreed to testify for the Commonwealth, he had expectations of leniency with regard to his pending charges, and that when he did so testify, he was obliged to tailor his testimony in favor of the prosecution. The fact that the charges were no longer pending is of no moment. As Judge (now Justice) Montemuro so aptly stated in his opinion below: "If this were the test, then the Commonwealth need only ensure that its ...

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