Commonwealth v. Thomas , 459 Pa. 371 ( 1974 )

ROBERTS, Justice

(dissenting).

The majority concludes that “the prosecutor . went far beyond [the permissible scope of cross-examination] and attempted to elicit other information detrimental to the defense . . . .” Ante at 283. It holds, however, that the error was harmless. With the latter I cannot agree.

On this record, I am unable to “declare a belief that [the error] was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Commonwealth v. Pearson, 427 Pa. 45, 48, 233 A.2d 552, 554 (1967). See especially Commonwealth v. Tucker, 452 Pa. 584, 589-591, 307 A. 2d 245, 248-249 (1973); see also Commonwealth v. Bynum, 454 Pa. 9, 12-13, 309 A.2d 545, 547 (1973); Commonwealth v. Dancer, 452 Pa. 221, 228-229, 305 A.2d 364, 367-368 (1973) (dissenting opinion of Roberts, J., joined by Nix & Manderino, JJ.); Commonwealth v. Knudsen, 443 Pa. 412, 416, 278 A.2d 881, 884 (1971) (dissenting opinion of Roberts, J., joined by Eagen, J.). The Only evidence directly implicating appellant other than the improperly admitted statement of Anthony Gwaltney, who reported incriminating admissions made by appellant, was the testimony of Michael Grant. Grant testified that appellant had told him that he had shot a man in the back of a meat truck. However, Grant’s credibility was seriously beclouded by his admission under cross-examination that he had lied to the police when initially questioned about the murder of Burk-hard. If Grant’s testimony had not been corroborated by the improperly admitted statement of Gwaltney, “honest, fair-minded jurors might very well have brought in not-guilty verdicts.” Chapman v. California, supra, 386 U.S. at 26, 87 S.Ct. at 829.

Because “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction,” Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972); Commonwealth v. Pearson, supra, I would reverse the judgment of sentence and remand for a new trial.