trial court .l may properly refuse to grant a defendant's point for charge [ ... ] where the court provides a general instruction that II I, 11 !the jury mus_t consider in its deliberations the potential bias or interest with which any witness may have !:" testificdjtciting Commonwealth v. Vickers. 260 Pa.Supenor Ct. 469, 394 A.2d 1022 (1978)
How later courts described this case
- trial court .l may properly refuse to grant a defendant's point for charge [ ... ] where the court provides a general instruction that II I, 11 !the jury mus_t consider in its deliberations the potential bias or interest with which any witness may have !:" testificdjtciting Commonwealth v. Vickers. 260 Pa.Supenor Ct. 469, 394 A.2d 1022 (1978)
- jury instruction was “adequate[]” where it advised the jurors to consider “any interest that the witnesses may have in the outcome of the case”
- upholding consolidation of six informations for sales over a two-month period
- unsigned information merely voidable and defendant’s failure to file motion to quash information waives his right to attack information on appellate review
Written by the judges who cited it.
The opinion
SPAETH, Judge,
concurring:
The majority relies on Commonwealth v. Vickers, 260 Pa.Super. 469 , 394 A.2d 1022 (1978), for the proposition that a general charge to the effect that in assessing a witness’s *443 credibility, the jury should consider any interest the witness may have in the outcome of a case, is always an adequate substitute for a more specific charge to the effect that a government informant may have penal and pecuniary interests in testifying favorably to the Commonwealth. Maj. op. at 433-434. On that basis, the majority concludes that a request by appellant’s trial counsel for the more specific charge would have been baseless. Maj. op. at 434-435. I am not persuaded that such a request would have been baseless.
First, I should not derive from Vickers the broad proposition that a general charge is always an adequate substitute for a specific charge that a government informant may have penal and pecuniary interests in testifying favorably to the Commonwealth: that we held a general charge adequate in the circumstances presented in Vickers does not mean that it will be adequate in all conceivable circumstances. In addition, even if a specific charge were never mandatory, it would not follow that a request for such a charge would be baseless: such a charge is at least permissible. Commonwealth v. Carey, 293 Pa.Super. 359, 372-374 , 439 A.2d 151, 158-59 (1981).
I nevertheless believe that here trial counsel may have had a reasonable basis for failing to request a specific charge. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 , 235 A.2d 349 (1967). First, Charles A. Gahagan of the Pennsylvania Drug Control Bureau admitted on cross-examination that the informant, Dale W. Kenst, Jr., had been paid for his services in the past. N.T. 33. Second, Kenst acknowledged that he had recently been caught by the police at a keg party with drug paraphernalia on his person, and that he was a marijuana smoker and criminal charges relating to his drug use “ha[d]n’t come down yet ---- [; that he didn’t] know what [was] going to happen yet.” N.T. 24-26. And finally, Gahagan not only corroborated but expanded upon Kenst’s story in considerable detail. N.T. 22-24; 35-37. Appellant’s trial counsel thus may well have concluded that the jury was already aware of Kenst’s penal and pecuniary interests, and that even if it *444 wasn’t, nothing would be gained from requesting a charge specifically referring to those interests, for such a charge couldn’t undermine Gahagan’s testimony.
I therefore concur in the majority’s conclusion that appellant’s trial counsel was not ineffective.