Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1972, No. 638, in case of Commonwealth of Pennsylvania v. Wesley Thomas.
Andrew G. Gay, for appellant.
William P. Boland, with him Mark Sendrow and Steven Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.
[ 229 Pa. Super. Page 117]
The appellant herein, after a jury trial, was found guilty of aggravated assault and battery and assault with intent to kill. In the instant appeal he urges this court to reverse the lower court's denial of his motion for a mistrial after a Commonwealth witness, in an unresponsive answer to a question put by the court, referred to "mugshots" the police showed to him prior to the trial. The facts of the case are as follows.
On Easter Sunday evening in 1972, despite the holiday atmosphere, a heated argument culminating in a fistfight broke out between two teenagers on a Philadelphia street corner. The mother of one of the boys witnessed the scuffle and, in an apparent effort to stop the fight, threw what one witness identified as lye at her son's opponent. At the time the woman was accompanied by the defendant, Wesley Thomas, who was sitting in his car. At this point Thomas alighted from his car and shouted, "We don't have to go through all this stuff." Thomas then took a pistol from his car and began firing at both the fighters and the spectators. Two of the five or six shots that Thomas fired struck two youthful onlookers. One of the boys was shot in the leg, and the other was more seriously wounded in the back.
At trial, the two boys who were shot positively and unshakeably identified Thomas as the man who fired the shots that evening. In addition, the Commonwealth introduced the testimony of a third witness who had not been in the line of fire. That man not only was
[ 229 Pa. Super. Page 118]
able to identify Thomas as the culprit, but also had had the presence of mind to note the license number, color and model of Thomas' car, which he had provided to the police when they arrived at the scene. This witness' testimony, however, was marred by the following exchange which occurred during cross-examination, and after the defense induced the witness to disclose the fact that the police had shown him photographs.*fn1
"Q. And, he didn't show you more than three photographs that day, did he? A. He just showed me three. Q. He didn't show you seven? A. He showed me three. Q. You're positive of that? A. Three, six, nine. The Court: What was that? The Witness: Three, six, nine. Three of one man, three of another man and three of another man, actually nine pictures, but it was only three men. The Court: There were what? The Witness: There were three men but there were nine pictures. The Court: What do you mean? The Witness: In a row. Call them mug shots in a row and they were side view, front view, side view -- side view, front view and the other side view, but they were separated in threes. The Court: What was the third shot? The Witness: It was three prints. The Court: The front view and a side view? The Witness: And the other side view. The Court: So that the three photographs were for each of the three men. The Witness: Right. The Court: Now I understand."
[ 229 Pa. Super. Page 119]
At this point the defendant's counsel moved for a mistrial; but, after a discussion with counsel in chambers, ...