Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1968, No. 222, in case of Commonwealth of Pennsylvania v. Samuel Craft.
David H. Kubert, with him Richard D. Atkins, for appellant.
Maxine J. Stotland, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, 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 Manderino. Dissenting Opinion by Mr. Justice Roberts and Mr. Justice Nix.
The appellant, Samuel Craft, was convicted by a jury on January 20, 1970, of second degree murder. Post-trial motions were denied and the appellant was sentenced to a term of four to eleven years imprisonment. This appeal followed in which we affirm the judgment of sentence.
The prosecution of the appellant resulted from the fatal stabbing on December 17, 1965, of Richard Gilliam, in a restaurant in Philadelphia, following an argument between the appellant and the victim. The appellant did not deny the altercation with the victim but claimed no stabbing had occurred while he, the appellant, was at the restaurant. Later that evening, the appellant learned that the police were looking for him in connection with the stabbing. He was not apprehended, however, and several months later, on February 23, 1966, the appellant, who knew that a warrant had been issued for his arrest, fled to Los Angeles, California. He was apprehended in California in September of 1968, and extradited to Pennsylvania on November 13, 1968.
First, the appellant contends that prejudicial error occurred when two prosecution witnesses made reference in their testimony to photographs. The jury, according to the appellant, could have inferred from these references that the appellant had a prior criminal record.
Three references to photographs occurred. Two of these references occurred when defense counsel was cross-examining a prosecution witness who was a friend of the victim and was present at the time of the stabbing. Defense counsel was attempting to impeach the witness by establishing that on the day following the stabbing, the witness had given the police a description of the assailant which did not fit the appellant. Defense counsel asked the following question which resulted in the first reference to photographs: "Q. Now, did you give a description of the man that you said did the stabbing at the time that you spoke to the police, at the time you made your statement? A. At the time I made the statement, I was shown three photographs in which I do believe I picked out your client's picture." (Emphasis added.)
Appellant's objection to the witness's response was overruled. Defense counsel then continued his questioning of the witness: "Q. Now, do you remember when you were asked back on December 18, 1965, question: What was the description of the man that did the stabbing? Answer: He was about twenty-eight or twenty-nine years old; six foot one; one hundred ninety pounds; brown skin and had a mustache. Do you remember that? A. I don't remember the description that was given, but I picked out the picture." (Emphasis added.)
The third reference to photographs occurred during the testimony of a later prosecution witness, a waitress, who was also present at the restaurant the night of the stabbing. During direct examination, the prosecutor asked the following question and the witness referred to photos in her answer: "Q. When you say the defendant looks like the man, what do you mean? A. Well, the man in the restaurant, he wasn't tall or nothing. He had a heavy mustache, but it was cold. He had on a hat and an overcoat and after everything happened, like they took me down to look at ...