Superior Court of Pennsylvania Holds That Own Witness Impeachment Doesn’t Require Surprise or a Hostile Witness

Like Federal Rule of Evidence 607, Pennsylvania Rule of Evidence 607(a) provides that

Any party, including the party that called the witness, may attack the witness’s credibility.

Federal courts have held with regard to own witness impeachment by a prosecutor that

Federal evidence law does not ask the judge, either at trial or upon appellate review, to crawl inside the prosecutor’s head to divine his or her true motivation….Rather, in determining whether a Government witness’ testimony offered as impeachment is admissible, or on the contrary is a “mere subterfuge” to get before the jury substantive evidence which is otherwise inadmissible as hearsay, a trial court must apply Federal Rule of Evidence 403 and weigh the testimony’s impeachment value against its tendency to prejudice the defendant unfairly or to confuse the jury.

So, what about Pennsylvania law?

In Commonwealth v. Parker, 2021 WL 2933227 (Penn.Super. 2021), Braheim Parker appealed his conviction for first-degree murder and related charges. Eyewitness Anthony Hyman had identified Parker as the murderer on the night of the crime. Thereafter,

Despite Mr. Hyman identifying [Parker] as the shooter during his police statement on the night of the shooting, Mr. Hyman testified at [Parker]’s preliminary hearing, at which [Parker] was present, that the person he saw shooting at Victim was not in the courtroom….

Moreover, during [Parker]’s trial, when the Assistant District Attorney (“ADA”) asked Mr. Hyman whether he saw “anyone in the courtroom today that [he] recognize[d] from [the] day [of the shooting],” Mr. Hyman responded “No.”…The ADA then questioned Mr. Hyman utilizing his police statement.

In his appeal, Parker claimed that his

trial counsel was ineffective in failing to object to the Commonwealth’s impeachment of its own witness, Mr. Hyman, at trial. Specifically, [Parker] contend[ed] the Commonwealth was not permitted to impeach Mr. Hyman with his prior inconsistent police statement unless the Commonwealth could demonstrate it was “surprised” by Mr. Hyman’s trial identification testimony or there was evidence Mr. Hyman was a “hostile witness.”

The court disagreed, citing Pennsylvania Rule of Evidence 607(a) and concluding that

As is evident, Pa.R.E. 607(a) does not provide that the Commonwealth must be “surprised” by or encounter a “hostile witness” as a prerequisite to impeaching its own witness.5 Here, the trial court was within its discretion to permit the Commonwealth to impeach Mr. Hyman’s trial testimony with his prior inconsistent statement, which was written verbatim, adopted, and signed by Mr. Hyman within hours after the shooting…..Thus, there is no arguable merit to Appellant’s claim, and trial counsel may not be deemed ineffective on this basis.

-CM