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decided: November 20, 1974.



A. Charles Peruto, B. A. Rose, Harold Diamond, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Benjamin H. Levintow, Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result. Roberts and Manderino, JJ., filed dissenting opinions. Jones, C. J., took no part in the consideration or decision of this case.

Author: Nix

[ 459 Pa. Page 375]


This appellant, after trial by jury, was convicted of murder in the first degree, aggravated robbery and several other offenses which are not presently before us. After post-trial motions were dismissed by a court en

[ 459 Pa. Page 376]

    banc and the imposition of sentence,*fn1 the judgment of sentence under the murder indictment was appealed directly to this Court, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(1) (Supp.1974-75); the appeal from the sentence imposed on the aggravated robbery indictment was first had to the Superior Court. By order of this Court the appeal to the Superior Court was certified to this Court and consolidated with the pending appeal on the murder charge for argument and disposition. Act of July 31, 1970, P.L. 673, No. 223, art. V, § 503, 17 P.S. § 211.503(c) (Supp.1974-75).

Turning first to appellant's contention that the evidence was insufficient to support the verdicts, a review of the record convinces us that the claim is without merit. The testimony established that at or about 2:30 P.M. on January 17, 1970, the deceased, a driver-salesman for a meat concern, while in the process of discharging the duties of his employment, was accosted by two men. During the course of an attempted robbery the victim received a gunshot wound to the abdomen which resulted in his death. A seventeen-year-old youth testified that while he was standing waiting for a friend, he observed the incident. He stated that two men, one whom he identified as Michael Townsell*fn2 and another whom he could not identify, attempted to rob the victim; that Michael Townsell was "tussling" with the victim inside the truck while the other man stood outside the truck; and that Michael stepped out of the truck and the other individual entered the vehicle when the witness heard a

[ 459 Pa. Page 377]

"pop". As the two men fled the scene they passed the witness who observed the man he could not identify placing a gun inside his pants. The victim fell out of the truck and after regaining his footing entered a store holding his stomach and stated "I've been shot, call the police." After leaving the store he collapsed on the highway where he was found by police.

The Commonwealth then produced a number of appellant's associates to establish that he [appellant] was the other man who participated in the robbery.*fn3 Bernice Wilson, who lived within a block of the scene, was approached by appellant on the street and directed by him to go into the backyard of her home, look under a box and pick up "what was there and take it in the house". Complying with the request Bernice immediately returned to her home, went to the rear yard and discovered a gun in the place she had been instructed to look. She re-entered her home and secreted the gun on a shelf in the cellar.

Lloyd Milton Wilson, the brother of Bernice, was in his home with Anthony Gwaltney and Michael Townsell when appellant entered and "asked me [Milton] for his piece". When Milton responded that he did not know where it was, appellant stated that Bernice knew "because he gave her the gun". Milton went upstairs and advised Bernice of appellant's request, whereupon Bernice directed the group to the cellar where the weapon was retrieved. Appellant placed the gun inside his belt and left the home.

Another friend of appellant, Michael Grant, testified that on the afternoon in question the appellant approached him and asked him to keep a .22 caliber black pistol. During this conversation, appellant told Grant that he had just shot a man. When Grant expressed

[ 459 Pa. Page 378]

    disbelief, appellant told Grant to watch the news on television that evening.

We have repeatedly stated that the test of sufficiency of evidence is whether, accepting as true all the evidence and all reasonable inferences therefrom, which if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971); Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968); Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85 (1964); Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963); Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960). Moreover, the evidence must be viewed in a light most favorable to the Commonwealth, the verdict winner, and the Commonwealth is entitled to all reasonable inferences arising from the evidence. Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971); Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970).*fn4 Reviewing the record, in light of the aforementioned principles, we are satisfied that the evidence presented to the jury was more than sufficient to sustain their verdicts.

The second assignment of error to be considered is whether the trial court committed reversible error with reference to his rulings relating to the testimony of the Commonwealth's witness, Anthony Gwaltney. The appellant claims prejudicial error occurred when the prosecution was permitted to impeach one of its own witnesses. Appellant further argues that the initial error [the allowance of a plea of surprise] was compounded by the latitude of cross-examination permitted.

[ 459 Pa. Page 379]

The fundamental rule in this jurisdiction is that it is within the sound discretion of the trial court to decide whether counsel may exercise the right of cross-examination of his own witness. Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973). In recent years this Court has announced several principles for the trial courts to follow in the exercise of this discretion. First, before counsel may cross-examine his own witness on a plea of surprise the testimony given by the witness must be unexpected. Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957):

"'Generally, to entitle the party calling the witness to relief from the situation caused by the witness's adverse testimony, it is essential that such party be really surprised by such testimony.' . . . Surprise, in its legal connotation, does not embrace disappointment or a feeling of frustration on the part of the one seeking to have a witness testify otherwise than he has indicated he will do." Id. at 253-254, 133 A.2d at 193.

Secondly, the testimony of the witness must be contradictory to statements the witness had made earlier. Commonwealth v. Bynum, 454 Pa. 9, 309 A.2d 545 (1973); Commonwealth v. Tucker, 452 Pa. 584, 307 A.2d 245 (1973); Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973); Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973); Commonwealth v. Knudsen, 443 Pa. 412, 278 A.2d 881 (1971). Thirdly, the testimony must be hurtful or injurious to the party calling the witness and beneficial to the opposing side. Commonwealth v. Bynum, supra; Commonwealth v. Tucker, supra; Commonwealth v. Dancer, supra; Commonwealth v. Stafford, supra; Commonwealth v. Knudsen, supra; Commonwealth v. Turner, supra.

"'Since the purpose of the cross-examination and impeachment is then, to induce the injury to disbelieve the testimony of the witness -- there must be something in the witness' testimony, which if not disbelieved by

[ 459 Pa. Page 380]

    the jury will be hurtful or injurious to the party calling him. Were it otherwise there could be no occasion to discredit or impeach the witness or to stamp him as unworthy of belief.'" Commonwealth v. Turner, 389 Pa. at 254, 133 A.2d at 194.

Fourthly, the scope of the cross-examination may not be excessive. Commonwealth v. Tucker, supra. The end sought to be achieved by permitting cross-examination of a witness by the party calling him is to allow an opportunity to dispute those unexpected adverse statements made by that witness by showing to the jury that he stated otherwise on a prior occasion. The prior statement is not admitted as substantive testimony but for the limited purpose of establishing the inconsistency. Thus, where this device is used to introduce additional facts which the witness did not specifically controvert no permissible evidentiary purpose is served and such practice will not be tolerated.

Lloyd Milton Wilson was called by the Commonwealth and testified to the presence of his sister Bernice, Anthony Gwaltney, and Michael Townsell, appellant's co-conspirator, at his home shortly after the subject robbery-murder. Upon the arrival of the appellant, at the Wilson home he requested his "piece" [revolver], which he stated he had given to Bernice. Accompanied by all present, Wilson's sister directed Wilson to the location of the weapon, which she had secreted in the cellar of their home. Upon finding the gun the appellant placed the weapon in his belt and left the Wilson home.

The Commonwealth next called upon Anthony Gwaltney to corroborate Wilson's testimony as to the appearance of the appellant in the Wilson home, his request for the weapon, and his subsequent departure with the object. Gwaltney had previously given to the police a full statement in which he had ...

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