Commonwealth v. Doswell , 533 Pa. 228 ( 1993 )

PAPADAKOS, Justice,

concurring.

I join with the majority in remanding the case for new trial based upon counsel’s ineffectiveness in not objecting to the use of a pending criminal charge to impeach a witness favorable to the defendant. I would go further and deny to the prosecution the use of the subsequent conviction and sentence of the witness at the new trial.

It must be in the naturé of hornbook law that one may not use as a means of impeaching a witness the fact that the witness has been charged with various crimes unless those charges have been proved beyond a reasonable doubt and the witness has been convicted and sentenced. How often must we repeat this before the prosecuting attorneys in this state catch on and realize that we mean it?

This is the type of case which holds up the judicial system to ridicule and leads many to believe we are only playing games in Court. Since the trial in which the prosecutor committed egregious error in asking questions of prior non-convicted charges, the witness has now been convicted and sentenced on the pending charge. Therefore, we now remand and the prosecutor will now be permitted to use the evidence to impeach the same witness.

Although I would not find that the error of the prosecuting attorney and the ineffectiveness of counsel, uncorrected by the trial judge, does not rise to a situation of placing the Appellant in double jeopardy, it certainly has caused a waste of judicial effort and expense as well as forcing the Appellant into a second trial. As suggested by the majority, the witness’s unimpeached testimony may have cast sufficient doubt upon the complaining witness’s testimony and a different result may have been reached by the jury. Returning the case for retrial with the right to use the conviction to impeach the witness gives to the prosecutor an advantage he did not have in the first trial. He now gets that advantage through his misconduct.

I would deny the prosecution the right to use the conviction as a means of impeaching the witness. This places both sides on a level playing field.

LARSEN, J., joins this Concurring Opinion.