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COMMONWEALTH v. FORD (03/16/73)

decided: March 16, 1973.

COMMONWEALTH
v.
FORD, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, Nos. 202 to 207, inclusive, in case of Commonwealth of Pennsylvania v. Albert A. Ford.

COUNSEL

Walter T. Darmopray, with him Hamilton, Darmopray, Malloy & Milner, for appellant.

Linda W. Conley, with her James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Nix.

Author: Roberts

[ 451 Pa. Page 83]

Appellant, Albert Ford, indicted for two murders arising out of the same incident, was tried by a jury and found guilty of murder in the first degree on both indictments. The jury determined that the sentence on the murder charges should be life imprisonment.*fn1 Following a denial of motions for a new trial and in arrest of judgment appellant filed this appeal. He alleges three trial errors which we shall discuss seriatim.

Appellant first claims that a particular knife and a photograph of that knife were improperly admitted into evidence over his objection. He contends that because at trial the knife was neither positively identified nor definitely connected with the murder it should not have been admitted into evidence.

Appellant was indicted for two murders. An accomplice, Ernest Sewell, who had earlier pleaded guilty to a charge of second degree murder arising out of the same incident, testified at trial that on January 23,

[ 451 Pa. Page 841970]

, appellant had stabbed two persons in a local bar with a kitchen knife about 12 inches long. Sewell then testified that appellant returned to his home where he washed the knife in the bathroom and put it away in the kitchen.

On January 30, 1970, pursuant to a search warrant listing a kitchen knife as one of the items to be seized, the police found a 12-inch knife in appellant's kitchen. At trial the medical examiner testified that the two victims' fatal wounds were caused by a knife with a seven to seven and one-half inch blade. However, he was unable to positively state that the knife found in appellant's kitchen was the murder weapon. Moreover, the accomplice, Sewell, was unable to identify the knife at trial as the one used by appellant. Appellant contends that because the knife was not positively linked to the crime it should not have been admitted into evidence.

However, positive testimony that the knife in question was actually the murder weapon is not required prior to introduction into evidence. United States v. Gordon, 455 F. 2d 398 (8th Cir. 1972); United States v. Cunningham, 423 F. 2d 1269 (4th Cir. 1970); United States v. Ramey, 414 F. 2d 792 (5th Cir. 1969); Pinkney v. United States, 363 F. 2d 696 (D.C. Cir. 1966); Commonwealth v. Ross, 266 Pa. 580, 110 Atl. 327 (1920). If a proper foundation for admission of the evidence has been laid, as here, then admission into evidence is permissible. United States v. Gordon, supra at 401-02; United States v. Cunningham, supra at 1276; Pinkney v. United States, supra at 698. The fact that the knife could ...


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