Gene D. Cohen, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result. Roberts, J., filed a dissenting opinion in which Nix and Manderino, JJ., join.
This is an appeal from the judgments of sentence imposed upon appellant, Henry R. Gaddy, following his conviction by a jury*fn1 of murder in the first degree and aggravated robbery*fn2 and the denial of his post-verdict motions.*fn3 The charges arose from the robbery-murder of one Martin Dobkin in his small grocery store in the City of Philadelphia on January 7, 1972. Appellant contends that he is entitled to a new trial because of seven errors allegedly committed by the trial court during the course of his trial. We do not agree, and affirm the judgments of sentence.
A review of the evidence will be helpful to an understanding of the specific errors asserted by appellant. It will at the same time show that there was sufficient evidence to support a finding of murder in the first degree.*fn4
The principal evidence implicating Henry Gaddy in the slaying came from one LeRoy Barnes. Barnes testified that in late December, 1971, he and the appellant were first approached by one Nathaniel Odom with the idea of
robbing Martin Dobkin's store, the Green Front Market. Barnes stated that while he himself expressed some reluctance to go along, Gaddy immediately agreed to the proposal. Nothing came of the plan, however, until January 7, 1972, when Gaddy and Odom finally persuaded Barnes to accompany them on their misadventure. That day they met at Odom's house; Odom produced a loaded .32 caliber revolver which he indicated to the others he was taking with him on the robbery.
At about 5:00 p. m., Odom, Barnes and Gaddy left the house and went to a bar across the street from Martin Dobkin's market. Through a window in the bar door they were able to observe the comings and goings of persons to and from the store. At approximately 6:00 p. m., satisfied that no shoppers remained in the store,*fn5 the three men moved across the street and entered the store. Inside the storeroom, Gaddy and Barnes placed themselves near the checkout counter, where Dobkin was standing, while Odom moved throughout the store removing various items from the shelves. Odom then came to the counter with his "purchases" and began fumbling in his pockets as though looking for money. Instead of money, however, he withdrew the revolver from his pocket and fired two shots at Dobkin, who fell to the floor clutching his stomach. Odom then leaned over the counter and fired two more shots. Dobkin subsequently died of a gunshot wound to the head.
After the shooting, Gaddy and Odom went behind the counter and rummaged through the victim's pockets and the cash register. Taking what money was there, Odom, Barnes and Gaddy fled from the store and ran to the house of one Marva Brown. Miss Brown was the girl
friend of Odom's brother. At her home, they divided the proceeds of the robbery among themselves: $25 to LeRoy Barnes; $85 to Nathaniel Odom; and $85 to Henry Gaddy. Barnes was the first of the three to be arrested, approximately a month and a half after the incident. He confessed his part in the episode and implicated the others.
We have no hesitancy in concluding that the evidence was sufficient to prove beyond a reasonable doubt that Gaddy was guilty of murder in the first degree on a theory of felony-murder.*fn6 See Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975).
We now turn to consideration of appellant's assignments of error. Four of them relate to the testimony of LeRoy Barnes, the principal Commonwealth witness; one relates to testimony of the victim's widow; and two relate to the charge of the court.
(1) The first error Gaddy advances is that the trial court abused its discretion in limiting defense counsel in his cross-examination of Barnes concerning his use of drugs. When counsel asked Barnes, "Do you take drugs, Mr. Barnes"? the attorney for the Commonwealth objected. The court ruled that counsel could ask Barnes about his use of drugs on the day of the robbery on the theory that such questioning was proper to elicit whether by the use of drugs Barnes' powers of observation had been impaired, but the objection was sustained insofar as the question sought to attack the credibility of Barnes generally. Appellant advances the view that this wider scope of inquiry in the area of drug use should have been permitted and refers us to the case of Commonwealth v. Dreibelbis, 217 Pa. Super.Ct. 257, 269 A.2d 387 (1970), in support of that position.
Appellant would have us read Dreibelbis too broadly. In Dreibelbis, the Superior Court held that it was proper, on cross-examination of an accomplice of the defendant, to question him with respect to his use of drugs on the day of the crime. The court's rationale was that such questioning "'was unobjectionable because it was asked for the purpose of attacking the credibility of the witness by showing that at the time of the event to which he testified his powers of observation and memory were impaired, so that his recollection and account of the experience might be inaccurate.'" 217 Pa. Super.Ct. at 260-61, 269 A.2d at 389, quoting Commonwealth v. Morrison, 157 Pa. Super.Ct. 366, 43 A.2d 400 (1945).*fn7 By so holding, the court carved out a limited exception to the general rule set down in Commonwealth v. Payne, 205 Pa. 101, 54 A. 489 (1903) that defense counsel may not inquire into the general reputation of a witness for the Commonwealth.
We are of the opinion that the testimony which defense counsel sought to elicit from Barnes in the case at bar was designed merely to blacken his reputation and as such was inadmissible. See e. g., Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973) and the cases cited therein. Evidence of prior misconduct unrelated to the issues at trial is admissible only insofar as it bears directly on the witness' " character for truth." (emphasis in original) 3A Wigmore, Evidence, § 922, at 726 (Chadbourn rev. 1970). See also Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973). General questioning concerning the use of drugs does not bear on the ...