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COMMONWEALTH PENNSYLVANIA v. NATHANIEL MOORE (07/07/75)

decided: July 7, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
NATHANIEL MOORE, APPELLANT



COUNSEL

Lawrence J. Ruggiano, Lancaster, for appellant.

D. Richard Eckman, Dist. Atty., Michael H. Ranck, Asst. Dist. Atty., Lancaster, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joins.

Author: Eagen

[ 462 Pa. Page 233]

OPINION OF THE COURT

On September 16, 1972, at 12:24 a. m., Edward Bruce Wiker was fatally shot while in the Jefferson Tavern located in Lancaster, Pennsylvania. Earlier that evening an altercation had taken place at the tavern during which one Jehu Johns was stabbed. Approximately one hour later, several friends of Johns proceeded to the tavern armed with a shotgun. Another disturbance developed following which Nathaniel Moore, the appellant herein, and Ricky Mack exited from the tavern carrying a shotgun. They walked to the opposite side of the street and one of them fired a shot through the front window of the tavern, killing Wiker.

The police, based on the descriptions given them by eyewitnesses, to the shooting, determined it was Moore who had fired the fatal shot and placed him under arrest. After a jury trial, Moore was found guilty of murder

[ 462 Pa. Page 234]

    in the first degree. Post trial motions were denied and a sentence of life imprisonment was imposed. This direct appeal followed.

A number of trial errors are asserted on this appeal. We find none meritorious and will, therefore, affirm the judgment. These claims of error will be discussed seriatim.

Initially, it is urged the trial court erred in permitting the Commonwealth to plead surprise and impeach its own witness through introduction of a prior inconsistent statement. The witness, Joseph Nolley, was called by the Commonwealth with the expectation that he would reiterate his prior statement implicating Moore as the perpetrator of the shooting. However, when asked whether Moore or Ricky Mack was carrying the shotgun as they exited from the tavern and crossed the street, Nolley stated he did not know. The Commonwealth was then permitted to plead surprise and, over defense counsel's objection, cross-examined Nolley concerning an earlier statement given to the police. During the course of this cross-examination, Nolley was directed to read aloud the following portion of his earler statement, "He was going, that is when Nate [the appellant] grabbed the gun and ran across the street alongside the Moose Hall, Moose building and fired the gun through the window." It is contended permitting this cross-examination and allowing Nolley's prior inconsistent statement to be read to the jury, was reversible error.

The general principles of law pertaining to the impeachment of a witness by the party calling him were discussed at length in Commonwealth v. Knudsen, 443 Pa. 412, 414-415, 278 A.2d 881 (1971). See also 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); ...


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