¶1dissenting.
¶2My first objection to the majority opinion is that the case is reversed on the suspicion that Pettyjohn perjured himself when he denied a “deal” with the Commonwealth.
¶3A further objection is that the majority opinion fashions a new evidentiary rule of law to find the trial court in error in denying to defense counsel the right to explore the circumstances of the judgment of conviction being vacated.
¶4The majority opinion holds that a defendant has a right to expose the fact that a witness has criminal charges pending against him and thereby possesses a motive to lie in order to curry favorable treatment from the prosecution. This holding overrules, without saying so, a consistent line of cases in this Commonwealth that say pending criminal charges are not a proper subject of cross-examination for the purposes of impeachment. 19A Ky. Digest, Witnesses 345(1).
¶5Discovery of this new right is based on Annunziato, an opinion of the United States District Court for the District of Connecticut. The holding in that opinion is apparently based on state law in Connecticut which recognizes the right to cross-examine a witness as to pending criminal charges. I object strongly to “discovering” this new “right” in this jurisdiction. Our present rule seems adequate and fair to me. Anyway, Annunziato turned primarily on Giglio grounds as stated in the opinion.
¶6In my view, the trial court did not commit error during the Cotton hearing. The majority opinion recognized that the trial court was obviously thinking only of whether testimony relating to a vacated conviction was admissible for purposes of Cotton. Of course it was not; nor did defense counsel even pretend that he wished to cross-examine on the pending charge. The query, “Can I inquire of him if he knows why it was set aside or what grounds?” does not present such a question. It occurs to me that there was no objection to the ruling of the trial court, no attempt by defense counsel to explain that he wished to cross-examine Pettyjohn if a “deal” had been made, and no request to introduce the testimony into the record by avowal. It is apparent to me that defense counsel did not have a “deal” in mind at the time.
¶7Defense counsel was not precluded from asking Pettyjohn if he had made a “deal” with the Commonwealth and did not do so. Davis and Greene can be distinguished on the factual situation. Davis involved a witness on probation and subject to being connected with the crime, and Greene involved allegations in an administrative hearing by individuals who did not testify or appear. I would disregard Annunziato. So much for the trial of the case.
¶8Next, on motion for a new trial on the ground of discovery of evidence that Petty-john had been promised favorable treatment in exchange for his testimony against Charles and, therefore, possessed a motive to lie, I cannot see how the facts developed bn the hearing can justify the majority in applying Gigiio, a “perjury” case. There the prosecution admitted a deal; here Pet-tyjohn denied a deal. Commonwealth’s Attorney Zollinger denied a deal, and Petty-john explained the basis for the RCr 11.42 motion which resulted in the judgment being vacated. He stated he was suffering from emotional disturbance at the time of his guilty plea and asked that it be withdrawn and he be permitted to plead not guilty.
¶9I am baffled as to how any of the evidence at the hearing can justify fitting this case within the “perjury” rule. As to the “discovery” of exculpatory evidence cases, an Agurs situation, it appears to me that the evidence developed at the hearing was not exculpatory. The letters written by Pettyjohn to his fiancee, about using his knowledge of the incident at Cooksy’s, buttress the truthfulness of Pettyjohn’s testimony and demonstrate that he did not fabricate his testimony as the result of a deal. If all this evidence were presented to a *148jury, as I presume the majority opinion intends, I believe it would strengthen the case of the Commonwealth. In my view, if any case applies it is Agurs, and application of the Agurs rule would affirm the case. It occurs to me that on the hearing defense counsel had every opportunity to call other witnesses from the Commonwealth’s attorney’s office to clarify the situation. He chose to leave the question to speculation on the assertion of a “deal,” and I would not speculate in his favor. Even applying the Giglio rule, I would say that there is no reasonable likelihood that all of the “discovered evidence” could have affected the judgment of the jury under the evidence as a whole. The conclusion in the majority opinion that the Commonwealth failed to disclose a “deal” is unwarranted.
¶10I respectfully dissent and would affirm the case.
¶11dissenting.
¶12On this appeal four questions are argued. First, it is contended that the Commonwealth made a deal with the witness Myer Pettyjohn to set aside his recent felony conviction in exchange for his testimony identifying the appellant as the person who committed the armed robbery with which appellant was charged. The Commonwealth’s Attorney denied making such a deal, and Pettyjohn denied that such a deal existed. The relationship of the Commonwealth’s Attorney with Pettyjohn can best be demonstrated by the following questions asked the witness by the Commonwealth’s Attorney in the in-chambers Cotton -type hearing (Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970)):
“By Mr. Zollinger:
Q. Mr. Pettyjohn, prior to your testimony did you ever talk to me?
A. No, sir.
Q. Has anybody promised you anything in return for your testimony?
.A. No, sir.
Q. This Mr. Meany that you talked to, did he make any promises to you?
A. The only thing that Mr. Meany assured me of was my safety. If Mr. Williams should go to the penitentiary that I would be in one penitentiary and that he would be in another one.
Q. And that was what made you testify?
A. Yes, sir.
Mr. Zollinger: That’s all.”
¶13The evidence offered by the appellant that such a deal did exist is purely speculative and conjectural. It does not attain such status as to compel a conclusion that such a deal did exist. It deserves no more than this passing comment.
¶14There is one matter, however, that is cause for concern. In the Cotton-type hearing the learned trial judge heard testimony and arguments relative to Pettyjohn’s parole revocation and arrest. The following dialogue took place:
“Mr. Receveur:
He was on parole — as you testified, you were on parole when you claimed to have seen Charles Williams and then you were arrested for the robbery.
Court:
Was it a parole revocation or something?
Mr. Zollinger:
Yes. Your parole was revoked, wasn’t it?
Court:
Well, that was the same conviction you’ve already ask about. You can’t hardly ask him about it twice, can you?
Mr. Receveur:
No, he had a PV and then he was arrested for robbery while he was on parole.
Mr. Zollinger:
That was set aside wasn’t it?
A. Yes, sir.
Mr. Receveur:
Is it pending?
A. Yeah, Um-hum.
Court:
Now wait a minute. You have been convicted previous to that of robbery also, which was not set aside, is that right?
*149A. Yes, sir.
Court:
So I think the limiting feature of this thing is quite applicable now and you should not ask him how many times or anything like that because after all you’ve got a judgment set aside, I can’t presume that he’s .
Mr. Receveur:
Can I inquire of him if he knows why it was set aside or what grounds?
Court:
No, sir. You can certainly ask him if he’s been convicted of a felony and if that felony was robbery. I think that’s all, in fairness, and I’ll have to admonish the jury.”
¶15During the course of the second trial counsel for appellant, in his cross-examination of Pettyjohn, asked the following questions, to which the following answers were given:
“Court:
Well let’s find out who may have spoken to him, if anybody, about it.
Q. Did anybody talk to you about your testimony?
A. No.
Q. You’re saying that your testimony at the Charles Williams murder trial didn’t have anything to do with setting aside that robbery conviction; is that right?
A. That’s what I’m saying to you.
Q. Nothing to do with it at all?
A. Right.
Q. You’re absolutely certain about that?
A. Right.
Q. Did you have a conversation with your attorney about Mr. Zollinger not opposing it — your sentence being set aside?
A. Did I have a conversation with who?
Q. With your attorney concerning Mr. Zollinger not opposing setting aside your plea of guilty?
A. I never have talked to him about it?
Q. Never?
A. No.
Q. Never?
A. Not Mr. Zollinger.”
¶16Appellant argues that the effect of the ruling of the trial judge was to deny him the right to interrogate Pettyjohn relative to the alleged deal. Consequently, appellant contends he was denied his right of cross-examination. Had that been the ultimate effect of the court’s ruling, then, and in that event, the appellant’s argument may have been tenable. In Parsley v. Commonwealth, Ky., 306 S.W.2d 284 (1957), we said:
“The interest of a witness, either friendly or unfriendly, in the prosecution or in a party is not collateral and may always be proved to enable the jury to estimate credibility. It may be proved by the witness’ own testimony upon cross-examination or by independent evidence. ‡ … >>
¶17Furthermore, in Clark v. Commonwealth, Ky., 386 S.W.2d 458 (1965), we held:
“Appellant proffered evidence, which is in the record by avowal testimony of the deputy circuit clerk, which showed that Sharp had been indicted in April, 1963, on twenty separate counts for stealing merchandise from Murphy-Miller; that in July, 1963, he had entered a guilty plea to six of the counts, and that in August of that year the other fourteen counts had been dismissed on motion of the Commonwealth. Under the circumstances of this case, we believe it was error to refuse this evidence. Although Sharp specifically denied that he had been promised leniency in exchange for his testimony, the circumstances of the dismissal of the fourteen counts, coupled with Sharp’s appearance before the grand jury after the dismissal — and his appearance as the prime prosecuting witness after the dismissal — tend to support the inference that Sharp’s testimony was the result of a biased personal interest.”
¶18In the first place the ruling of the trial judge pertained to interrogation relating to Pettyjohn’s prior felony convictions and did not pertain to any deal. As a matter of fact, the trial judge, during the second trial *150and while the witness Pettyjohn was under cross-examination by counsel for appellant and while considering the propriety of the testimony pertaining to a deal, made the following statement:
“Well, I understand what you’re trying to get to. I would like for you to go ahead and get there. I don’t know what this part of it you’re asking now has to do it. If he was influenced by anything I think you may directly ask him that. If anything influenced his testimony and if he changed it then why and so forth, particularly; well I don’t want to presume anything.”
¶19Secondly, and assuming for the sake of argument only that the trial judge did mean for the ruling to apply to interrogation relating to an alleged deal, there is no objection made to the court’s ruling, thereby waiving any error. Gavins v. Commonwealth, Ky., 272 S.W.2d 656 (1954).
¶20I concur with the majority opinion in the manner in which it disposes of the allegations of perjured testimony, the testimony relating to the smoking of marijuana, and the argument of the Commonwealth’s Attorney.
¶21I respectfully dissent. I would affirm.