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decided: January 26, 1978.



Charlotte A. Nichols, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Bonnie B. Leadbetter, Asst. U. S. Atty., for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix, J., concurs in the result. Pomeroy, J., filed a Dissenting Opinion in which Eagen, C. J., and Larsen, J., joined.

Author: Manderino

[ 476 Pa. Page 323]


Appellant, Odell McDuffie, was tried before a judge and jury and convicted of murder in the second degree. Post-verdict motions were denied and sentence of ten to twenty years imprisonment was imposed. This appeal followed.

Appellant contends that the trial court erred in not granting his motion to strike certain testimony given on cross examination by a prosecution witness. This testimony was to the effect that appellant had previously been convicted of another homicide. We agree and therefore reverse the judgment of sentence and grant a new trial.

The prosecution's evidence at trial established that during the early evening of June 25, 1973, appellant and one Alvin Jordan confronted the decedent and a companion on the street in Philadelphia. The victim and his companion were sitting on some steps adjacent to the sidewalk when appellant and Jordan pulled up in a car, and, according to the testimony of the prosecution witnesses, appellant shot and fatally wounded the decedent as he attempted to escape by running up the street.

The prosecution called Alvin Jordan, appellant's companion and driver of the car at the time of the incident, who testified that at approximately 8:30 p. m., on June 25, 1973, he was approached by appellant who asked him for a ride up 20th Street. Jordan testified that he drove appellant to Christian Street and stopped the car in front of appellant's house while appellant went inside. Appellant then returned to the car and told Jordan to "go around the corner." Following appellant's instructions, Jordan went to 19th Street and Katherine Street where they met a third party,

[ 476 Pa. Page 324]

    one Fred Simms. Together Jordan, Simms, and appellant drove to Colorado Street and at that point Jordan noticed that appellant had a pistol. Again following appellant's instructions, Jordan drove down the street and stopped in front of a house where some people were sitting on the steps. Jordan testified that appellant and Simms who were both armed, got out of the car and began "pistol whipping the boys with the guns." Jordan testified that as the boys attempted to escape by running across and down the street, he saw appellant firing shots. After the shooting appellant and Simms got back in the car and left the scene, Jordan stating that he complied with appellant's requests to drive away because he was afraid that if he did not comply he would be shot.

During the cross-examination of Jordan, defense counsel sought to establish that Jordan was presently incarcerated as the result of a series of robbery charges having been filed against him, and that he was awaiting disposition on these charges. The defense elicited testimony which indicated that the district attorney's office had told Jordan that it would recommend a lesser sentence on several of these open robbery indictments in exchange for Jordan's testimony in this case against the appellant. In the course of this cross-examination, Jordan responded to one of defense counsel's questions by mentioning that appellant had received probation for a prior homicide in which appellant was involved. Such a reference to appellant's prior criminal conduct is highly prejudicial. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976).

Defense counsel immediately requested to have Jordan's answer stricken. This motion was denied with the court making the following observation:

"You asked for the conversation. You may not like the answers, but he is trying to answer you."

The trial court's denial of defense counsel's motion to strike was reversible error.

In general, a party is not entitled to have stricken incompetent evidence which that party elicits. We are of

[ 476 Pa. Page 325]

    the opinion, however, that the instant case is not within the proscription of that rule. The response made by the witness to defense counsel's questioning here cannot be said to have been elicited by defense counsel. In cross-examining Jordan, defense counsel made clear on several occasions that inquiry was being made about Jordan's problems with the district attorney and not about appellant's. The following questions were asked by defense counsel before the question which resulted in the reference to appellant's prior criminal conduct:

Q. Did you discuss your particular circumstances in any way with the District Attorney at that time? (Emphasis added.)

A. I can't answer that.

Q. I just wish to ask what else, as far as your circumstances were concerned, as far as the line of robberies that you had on you, whatever -- what else, aside from Odell McDuffie's problem, did you discuss with the District ...

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