Opinion

Commonwealth v. Percell

  • 499 Pa. 589
  • 454 A.2d 542
  • 1982 Pa. LEXIS 685
Court
Supreme Court of Pennsylvania
Filed
Dec 31, 1982
Status
Published
Author
McDERMOTT
On the bench
O'Brien, Roberts, Nix, Larsen, Flaherty, McDermott, Hutchinson
Cited by
14 cases

The opinion

*596 McDERMOTT, Justice,

dissenting.

The majority orders what will be the defendant’s third trial for this offense. To do so they examined two instances of alleged prosecutorial misconduct.

The first instance is that the District Attorney attempted to impeach a witness by the use of a prior arrest not resulting in a conviction. The witness, one Russell Kolins, was a private investigator who was offered to show inconsistent statements made by various witnesses for the Commonwealth. Kolins is a practiced, experienced witness, and the district attorney was indeed anxious to persuade the trial court that his arrest for “witness tampering” was a relevant issue. The trial judge carefully examined the question in the context of the witness’ testimony as to his experience and his statement that he had received his license, after an investigation by the District Attorney’s office. The trial judge, in camera, foreclosed the use of the arrest for impeachment purposes. The majority speaks as though the jury heard that the witness was once charged with witness tampering.

.... the unavoidable effect of such conduct was to raise in the minds of the jurors the inference that the defense was harboring an unreliable witness — a witness who would suppress the truth and pervert the criminal justice system by tampering with witnesses.

See, Opinion, Flaherty, J., at 3.

The jury never heard that the witness was so charged. Neither the words “witness tampering” nor any recognizable inference was ever put before the jury.

The second ground offered by the majority is that the district attorney attempted to impeach the defendant by using a prior conviction not crimen falsi, to' wit, that the defendant had a prior conviction for carrying a gun. The trial judge ruled the prior conviction inappropriate and prejudicial. It is true that the district attorney attempted to circumvent that ruling and objections were sustained. The circumvention, however, did not incorporate or specifically indicate a prior conviction. The issue, however, quickly *597 evaporated when the defendant said he did not know it was unlawful to carry a gun. At that juncture his prior conviction established at least his prior knowledge that carrying a gun is illegal. Notwithstanding, the careful trial judge sustained objections even to questions that might inferentially expose that conviction. Again the jury had no direct knowledge of his previous conviction.

The learned trial judge, who carefully, patiently and skillfully sat through four weeks of spirited trial was of the opinion that these and other occasions were de minimus. To read the over three thousand pages of testimony, replete with the care and patience Judge Geisz exercised, leaves no doubt that this defendant received a fair trial and was convicted by overwhelming credible evidence. To suggest that the passage of time dulled the trial judge’s memory of the texture and fabric of that trial is an arch gratutity. To make his careful admonitions to counsel, admonitions that he never conceived as subjected to scornful disobedience, a basis for a new trial, is to my mind unsupportable and accordingly I dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.