Comm. v. Thomas, 2018 PA Super 221 (Aug. 3, 2018)

Out of Philadelphia County. Thomas was convicted of first-degree murder.  Three issues were raised in this appeal, but only one was of particular note that caught my attention.  It dealt with what is referred to as the “Rule of Completeness,” which is an evidentiary concept tied up in Rule 106 of the Rules of Evidence.  The rule reads as follows:

If a party introduced all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.

Interestingly, here, it wasn’t the “adverse party” that invoked this rule, as the language of the rules requires, but it was the judge who got involved in the process and gave an assist to the opposing attorney.  These were the circumstances as rehashed in the Superior Court’s opinion.

During defense counsel’s re-cross examination of eyewitness Eric McDowell . . . counsel read to McDowell a portion of his preliminary hearing testimony—where McDowell had claimed he was running away from the scene and did not witness the shooting as it happened—and asked McDowell to confirm the accuracy of his prior testimony, which McDowell did.

At that moment, the court addressed the prosecutor and advised her that she may ask defense counsel to read any other portion of McDowell’s preliminary hearing in the interest of completeness, as the prosecutor would not have the opportunity to conduct more questioning after defense counsel completed his re-cross examination. The prosecutor requested that defense counsel “read to the next page, page 14,” to which defense counsel asked of the court “Are you stopping my cross-examination?” The court responded,

“No. Under the rule of completeness, I’m allowing her to direct you to cover more than what you just did. Keep reading the questions and answers. That’s what I’m doing. . . . It’s a continuation. She’s about to have you continue reading. Within fairness it should be read. I’m allowing her to do that.”

“And you want me to do it?” defense counsel asked, to which the court replied, “You can do it, yes.” “Okay[,]” defense counsel replied.

Defense counsel read the next page of the preliminary hearing notes of testimony, where McDowell testified he did not see the shooting happen but was present that day at the time of the shooting. “I got up out of there . . . when it was about to go down[,]” McDowell explained. N.T. at 125-26 (quoting preliminary hearing testimony). McDowell testified he saw Appellant holding the gun toward the shooting victim “and that’s when I got up out of there.” N.T. at 126 (quoting preliminary hearing testimony). McDowell then heard “like three, four” gunshots as he was running away. N.T. at 126. (quoting preliminary hearing testimony).

Defense counsel did not lodge an objection to the court’s interjection at the time of trial; therefore, the Superior Court deemed this issue waived. But the case is an important reminder for the bench and bar alike for two points: (1) judge’s should be mindful that they’re the neutral arbiters (referees/umpires, so to speak) of a trial, there to call the balls and strikes, not to participate as one of the players; and (2) lawyers should be mindful that sometimes they’re pushing a particular point can come back to bite them. 

This case is a “case study” in strategically putting points on the board, then shutting up and sitting down.  Now, of course, I don’t know the surrounding circumstances of the case—for example whether the witness was being hostile—but it seems there may have been a better way for defense counsel to make his point without reference to the transcript.  Obviously, the “complete story” was not a good look for the defendant.