# Commonwealth v. Fulton

> Supreme Court of Pennsylvania · July 22, 1983 · 318 Pa. Super. 470

URL: https://www.frixlaw.com/law-library/cases/9643836

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Chester George FULTON, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 22, 1983
- **Citations:** 318 Pa. Super. 470; 465 A.2d 650; 1983 Pa. Super. LEXIS 3558
- **Precedential status:** Published
- **Opinion:** Dissent by Popovich
- **Judges:** Popovich, Montgomery, Van Voort
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

POPOVICH, Judge,
dissenting:
The trial court erred in limiting defense counsel’s cross-examination of the prosecution’s “key” witness. The jury was entitled to know that Lang was an accomplice and the. existence of any promises of leniency which might have *485 been extracted by Lang in exchange for his plea of guilty to a statutory rape charge. Because such evidence bears on a witness’s credibility, the refusal of the trial court to allow appellant an opportunity to conduct proper cross-examination constitutes reversible error. See Commonwealth v. Randall, 183 Pa.Super. 603, 615 , 133 A.2d 276, 282 (1957).
In Randall , the trial court restricted defense counsel’s cross-examination of Homer Smickley, a prosecution witness. Smickley had been indicted on charges which arose out of the same set of circumstances as the charges which were launched against defendant Randall. However, when the cases were called for trial, the district attorney petitioned the trial court for leave to “withdraw” the indictment against Smickley, which was granted.
During the trial, Smickley admitted on direct examination that he was an inmate on a violation, and that he had entered a plea of guilty to a liquor violation in connection with Randall’s case. When defense counsel sought to elicit testimony from Smickley that another charge had been withdrawn, and to question him on the circumstances under which the charge had been withdrawn, the court sustained objections to the cross-examination. We said the following:
“Of course, if the witness is under indictment for the same crime, or for a crime growing out of, or closely related to, the very offense for which the defendant is being tried, so as to form a part of the same occurrence or transaction, it is proper for the jury to know it, as bearing on the witness’s interest in the immediate matter * * * ; and the jury are entitled to know it.” The questions and answers and comments of counsel in connection with the testimony of Smickley clearly portrayed to the jury the nature of Smickley’s connection with the cases under trial so that the jury could not have been under any misapprehension as to Smickley’s interest, possible bias or prejudice or that his testimony may have been given with expectation of immunity, clemency or leniency. Moreover, the jury was adequately instructed that it should be satisfied upon the point of *486 the truthfulness of his testimony and “should carefully and clearly scrutinize his testimony, accept it with caution, not only because of any interest that Homer Smickley might have, but because Ms testimony is evidence from a corrupt source, in view of the fact that he was an accomplice and pleaded guilty to the charge.” (Emphasis added)
Similarly, defense counsel should have been allowed to elicit testimony on the nature of Lang’s connection “so that the jury could not have been under any misapprehension as to [Lang’s] interest, possible bias or prejudice that his testimony may have been given with expectation of immunity, clemency or leniency.” Id. In the case at bar, it was “the Defense position that once [the prosecutor] put [Lang] on the stand [the prosecutor] open[ed] him up to any type of cross-examination”. Id. In my view, this request should have been granted.
It is interesting to note that after the jury had retired to deliberate it submitted the following question to the court:
“May we have a copy of John Lang’s and Pauline’s [the victim’s] testimony? At least the part that describes the men as they left the cottage and at the scene of the stabbing. Also her original description of the four men. Signed William J. Held [the foreman]” (N.T. 334)
Although the trial court denied this request, there is no doubt in my mind that Lang’s testimony was crucial to the prosecution’s case, and, for this reason, the defense counsel should have been allowed an opportunity to cross-examine him. See Commonwealth v. Coades, 454 Pa. 448, 450 , 311 A.2d 896, 897 (1973) (“If we permit a jury to infer that a co-indictee’s testimony is biased because he may receive favorable treatment, we cannot logically preclude the jury from drawing the same inference when the co-indictee may have already received favorable treatment.”) (Emphasis in original). Additionally, there was no instruction which might have cured the error, as was done in Randall . Hence, my dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9643836. Public record. Not legal advice.