Commonwealth v. Stakley , 243 Pa. Super. 426 ( 1976 )

WATKINS, President Judge.

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Butler County by the defendant-appellant, Theodore F. Stakley, after conviction for the crime of theft of services; and from the denial of post trial motions.

The defendant was arrested on May 29, 1975 and charged with theft of services for placing phone calls in the amount of $489.53 without intending to pay for them. He was convicted and sentenced to a term of imprisonment of one and a half to three years. This appeal followed.

The charges were based on a series of phone calls made by the appellant from various locations to his friends and relatives all over the United States. The calls were charged to the phone number of one William H. Gray without Mr. Gray’s permission.

The issue involved in this case is the contention of the appellant that an “unsuitable discharge” from the United States Army which was permitted to be introduced into the evidence was prejudicial and requires a new trial. The matter came into evidence in the following manner on cross-examination by the defense attorney:

“Q. [by defense counsel] May I ask you just a couple more things here, sir. As part of your investigation did you obtain Mr. Stakley’s military discharge and military records as part of your investigation ?

“A. [by Mr. Meyers] Yes, I did.

“Q. May I ask you how the telephone company was, managed to get these, what are usually very classified documents ?

“ [the District Attorney] I’ll object to that.

“THE COURT: That’s sustained. There’s nothing classified about a military discharge. You recast that question.

“ [defense counsel] I’ll withdraw the question.”

On redirect examination, the district attorney pursued the subject of appellant’s discharge:

“Q. Mr. Meyers, did — I think I’d like to ask you a little bit about this, since the defense attorney briefly got into this. What was the occasion of your having questioned the discharge of the defendant here from the Army ? What occasioned you to do that ?

“A. At the magistrate’s hearing here in Butler Mr. Stakley said that it was my fault for initiating a C.I.D. investigation that caused him to be kicked out of the Army on an unsuitability discharge.

“Q. Your fault as in Mr. Meyers’fault?

“A. Yes, I called his former commander at Fort Ord, California and he assured me it had nothing to do with this particular civilian investigation, because the staff judge advocate at Fort Ord indicated they would have nothing to do with the civilian offense, and he was given an unsuitability discharge.”

The purpose of counsel’s questioning was evidently to discredit the testimony of the investigatory witness of the Commonwealth and, once asked, the Commonwealth was justified by re-examination to attempt to reinstate his credibility.

We do not reach in this case the question as to whether evidence of a dishonorable or unsuitable discharge may in any instance be permitted into evidence. The issue in this appeal is whether the question asked by, the defendant’s counsel opened the door for rebuttal testimony by the Commonwealth. This question of “opening the gate” was discussed in McCormick, Evidence §§ 32, 57 (Cleary 2d Ed.), as follows:

“One party offers evidence which is inadmissible. Because the adversary fails to object, or because the judge erroneously overrules an objection, the incompetent evidence comes in. Is the adversary entitled to answer this evidence, by testimony in denial or explanation of the facts so proved ? . . . [M]ost of the courts seem to say generally that ‘one who induces a trial court to let down the bars to a field of inquiry that is not competent or relevant to the issues cannot complain if his adversary is also allowed to avail himself of the opening.’ ”

The phrase “opening the door” or “opening the gate” by cross-examination involves a waiver. If defendant delves into what would be objectionable testimony on the part of the Commonwealth, then the Commonwealth can probe further into the objectionable area.

The most reasonable deduction that can be made by a jury from the questions asked would be an inference that the discharge was an honorable one or his counsel would never have raised the question. This would enhance the defendant’s credibility. So, on rebuttal the Commonwealth was properly permitted to reveal that defendant’s discharge record was unsuitable. As the court below aptly put it: “This was akin to the defendant implying that he had a good military record . . .”

Further, the evidence to convict the defendant was overwhelming in nature. In Commonwealth v. Palmer, 463 Pa. 26, 342 A.2d 387 (1975), a murder case, the Supreme Court said, at page 392:

“ ‘ “ [e] very unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial” ’. Rather the remark must be ' “of such a nature or substance or delivered in such a manner that it may reasonably be said to> have deprived the defendant of a fair and impartial trial” ’. [Emphasis in original.] Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973), quoting from Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733 (1957).”

Further, in Palmer, supra, at page 392, the Supreme Court noted:

“Finally, if counsel viewed the statement as harmful, a cautionary instruction should have been requested. No such request was made.”

This is also true in the instant case and as in Palmer, supra, the question concerning the discharge was an isolated one and no further mention was made either at trial or in closing arguments.

Judgment affirmed.

PRICE, J., files a concurring opinion. HOFFMAN, J., files a dissenting opinion in which CERCONE and SPAETH, JJ., join.