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decided: February 28, 1977.



Charles Lowenthal, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Miranne E. Cox, Philadelphia, for appellee.

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

Author: Pomeroy

[ 471 Pa. Page 421]


Following a jury trial, James Bennett, the appellant, was convicted of murder in the first degree and aggravated robbery. After the trial court denied his post-verdict motions, Bennett was sentenced to a term of life imprisonment for murder and to a concurrent imprisonment

[ 471 Pa. Page 422]

    of ten to twenty years for robbery. This direct appeal followed.*fn1

Bennett assigns four trial errors as mandating a new trial. Finding no reversible error, we will affirm.*fn2


Appellant first objects to the refusal of the trial court to admit into evidence a statement given by an eyewitness to the crime, one April Young. Ms. Young, called as a Commonwealth witness, testified on direct examination that she saw the defendant shoot Calvin Turner. During the course of her cross-examination, defense counsel produced a statement allegedly given by Ms. Young to counsel prior to trial which in various particulars was inconsistent with her testimony. When confronted with the document, Ms. Young admitted that the signatures on it were hers, but denied having made most of the statements contained in it. The defense subsequently called to the stand one Joseph Prim, who testified that he had been present when the statement was given by April Young. He gave his recollection of the substance of that statement, and testified that the statement had been taken down by counsel in counsel's own words.

When later the statement was offered in evidence, the court sustained an objection to it on the

[ 471 Pa. Page 423]

    ground that the document had not been properly authenticated, since Ms. Young had denied making the statement and the scrivener had not been called to verify it as hers. We find no error in the court's ruling. Furthermore, appellant was able to make substantial use of the statement in his questioning both of Ms. Young and of Prim. In this process the jury was made fully aware of the contents of the statement, the circumstances under which it was made, and that it had been signed by Young. The mere fact that it was not formally admitted into evidence was in no wise prejudicial to the defendant. See 1 Henry, Pennsylvania Evidence, § 1 at 4 n. 16 (1953 ed.).


Appellant's next allegation of error relates to the testimony of a police detective who was present when the murder weapon was recovered from the victim's bar, where it had been hidden by Bennett's accomplice. The officer testified, over objection, that when he examined the weapon, a .38 snubnose revolver, it had a gray discoloration on the cylinder and barrel. He then testified, based upon his experience in firing weapons, that such discoloration indicated that the gun had been fired, although he could not say when it had been fired. The appellant contends that this testimony should not have been admitted because the officer had not been properly qualified as an expert in firearms. For three reasons we find no merit in this argument.

In the first place, the officer did not purport to testify as an expert, and his testimony was not "expert testimony" in the traditional sense. As the Superior Court has put it:

"[A] witness may state relevant facts known to him, because of experience, even though he is not regarded as an expert whose opinion would be admissible

[ 471 Pa. Page 424]

    on a hypothetical inquiry." Commonwealth v. Harris, 186 Pa. Super. 59, 63, 140 A.2d 344, 345 (1958).

The testimony was not intended to be determinative of whether the gun had been fired; it was, rather, in the nature of a statement of the officer's observations.

Secondly, even if the testimony were to be considered expert testimony, the question whether a witness is qualified to testify as an "expert" is within the sound discretion of the trial court and will not be overturned except in clear cases of abuse. Commonwealth v. Davis, 466 Pa. 102, 115, n. 9, 351 A.2d 642, 648 n. 9 (1976); McCullough v. Holland Furnace Co., 293 Pa. 45, 141 A. 631 (1928); McCormick, Evidence § 13 at 29 (Rev. ed. 1972). We find no abuse in this case. The officer clearly was not a neophyte with firearms, and could be expected to have first hand knowledge concerning the firing of a weapon and its consequences in the appearance of the gun. His credibility, of course, was for the jury to pass upon.

Finally, the officer's testimony was at best merely cumulative because appellant's co-defendant, Barry Andrews, had already identified the revolver as the one used by Bennett during the robbery-murder.


Appellant objects to the fact that on re-direct examination of Barry Andrews, a co-conspirator called by the Commonwealth, the prosecuting attorney was permitted to question him concerning statements he had given the police before trial which were consistent with his testimony on direct examination. On cross-examination, defense counsel had attacked the credibility of Andrews by raising the inference that his testimony was motivated by self-interest in order to obtain more ...

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