On May 8, 1998, Thomas Kimbell, Jr. was convicted on four charges of first degree murder in connection with the stabbing deaths of Bonnie Dryfuse, her two daughters, 7 year-old Jacqueline Dryfuse and 4 year-old Heather Dryfuse, and her niece 5 year-old Stephanie Herko, at the Dryfuse home in Lawrence County. After the penalty hearing, the jury imposed death sentences for the murders of the three girls. Kimbell was sentenced to life imprisonment for the murder of Bonnie Dryfuse. On May 18, 1998, Kimbell filed a post-sentence motion for judgment of acquittal or, alternatively, for a new trial. The Lawrence County Court of Common Pleas denied his motion on February 11, 1999.
Kimbell presents eight issues on appeal; however, we will only address the issue of whether the trial court erred in refusing to allow defense counsel to cross-examine Mary Herko, the mother of victim Stephanie Herko. Mary Herko was called as a defense witness at trial. For the following reasons, we find that the trial court erred in denying defense counsel the opportunity to cross-examine the witness. Accordingly, the judgments of sentence must be vacated and the matter remanded for a new trial.
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On June 15, 1994, the bodies of Bonnie, Jacqueline and Heather Dryfuse and Stephanie Herko were discovered in the Dryfuse mobile home at 100 Ambrosia Road in Pulaski Township, Lawrence County shortly after 3:00 p.m. Tom Dryfuse, Bonnie's husband and the father of Jacqueline and Heather, testified at trial that he was with his father on the day of the murders until he returned home after 3:00 p.m. Bonnie Dryfuse's body was found lying on the kitchen floor; the girls' bodies were found together in a bathroom. The victims sustained multiple stab wounds and their throats had been slashed with a knife. Tom Dryfuse, who was also known as Jake, made a phone call to a friend, then called 911. Police officers responded to the call and arrived at the scene.
The Commonwealth presented evidence that Kimbell resided in a trailer park that was located within a short distance of the Dryfuse mobile home. Several witnesses testified that they had seen Kimbell in close proximity to the Dryfuse home before the bodies were found. Other witnesses testified that Kimbell had made statements to them admitting his involvement in the crimes.
Tom Dryfuse testified at trial that when he found the girls' bodies in the bathroom, he thought he had observed movement of Heather's eyelids and believed that Heather was still alive at the time. He testified that Heather was the only child whom he touched after finding the bodies. Dryfuse's testimony was inconsistent, however, with the testimony of one of the Commonwealth's forensic experts, who testified on cross-examination that blood found on the right hand of Tom Dryfuse was a genetic match for that of his daughter Jacqueline, not his other daughter Heather.
In addition to the forensic evidence demonstrating that the blood of one of the victims whom Tom Dryfuse denied touching was found on his hand, defense counsel was aware of a statement given to the police a year after the murders by Mary Herko that indicated that Tom Dryfuse was at the victims' home shortly before the murders occurred. Mary Herko, the mother of victim Stephanie Herko, had given a statement to the Pennsylvania State Police indicating that she was speaking on the telephone with Bonnie Dryfuse around 2:00 p.m. on the day of the homicides. Herko indicated that the conversation ended at about 2:20 p.m. after Bonnie Dryfuse stated that she had to go because Jake (Tom Dryfuse) had just pulled in.
The Commonwealth did not call Mary Herko as a witness at trial. She was called as a witness by defense counsel, as the statement would place Tom Dryfuse at the scene of the homicides forty minutes before the time that he testified to arriving at home.
On direct examination by defense counsel, Herko testified that on the afternoon of the murders, she had spoken by telephone with Bonnie Dryfuse and that just before hanging up, Mrs. Dryfuse had said, I got to go, somebody just pulled up in the driveway. Defense counsel then sought to question her about her prior statement to the State Police. The prosecutor objected on the ground that defense counsel was seeking to impeach his own witness. The objection was sustained and defense counsel was not permitted to question Herko about the prior statement.
Kimbell asserts that the trial court abused its discretion in refusing to allow defense counsel to cross-examine his own witness about her prior statement to the State Police, which placed a specific person at the scene of the homicide at the time the crimes appeared to have been committed, where her testimony at trial indicated only that an unidentified person was at the scene. He contends that the prior statement was significant because it was exculpatory as to him and cast serious doubt on the alibi of Tom (Jake) Dryfuse. Kimbell asserts that the refusal of the trial court to permit further questioning of the witness with regard to her prior statement denied him the opportunity to place the last words of Bonnie Dryfuse before the jury, words that indicated that another person was at the scene at the time of the homicides, and that those words could have had an impact on the jury's verdicts by creating a reasonable doubt as to his guilt. He argues that the interests of truth and justice require that he be given the opportunity to cross-examine Mary Herko as to her prior statement.
The Commonwealth responds that the trial court's determination that Kimbell would not be permitted to cross-examine Herko was well reasoned and justified. It asserts that the trial court faithfully applied the multi-step analysis of the decisional law of the appellate courts to guide the exercise of its discretion in concluding that the traditional requirements for permitting Kimbell to cross-examine his witness were not met. The Commonwealth maintains that the trial court's ruling was within the bounds of its discretion.
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