Stephen Robert LaCheen, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty., Robert B. Lawler, Chief Appeals Div., Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a concurring opinion in which Eagen, C. J., and Manderino, J., join.
Appellant, Harry Mimms was convicted in the trial court of carrying a concealed deadly weapon*fn1 and unlawfully
carrying a firearm without a license.*fn2 The Superior Court affirmed the conviction, Commonwealth v. Mimms, 232 Pa. Super. 486, 335 A.2d 516 (1975), and we granted allocatur.
Our original decision was to reverse the Superior Court and direct a new trial on the ground that appellant's revolver had been seized by the police in a manner which violated the Fourth Amendment to the Constitution of the United States. Commonwealth v. Mimms, 471 Pa. 546, 370 A.2d 1157 (1977). The Supreme Court of the United States granted the Commonwealth's petition for certiorari, reversed our order and remanded the case to this Court for further proceedings.*fn3 Having reexamined the record and the assignments of error not heretofore addressed,*fn4 we determine that Mimms is entitled to a new trial on a ground other than the alleged search and seizure violation which formed the basis of our first decision.*fn5
During the trial of appellant both Mimms and one Clayton Morrison, a passenger in Mimms' automobile at the time of the arrest of Mimms, testified that it was Morrison who had brought the illegally possessed firearm into the car.*fn6 Morrison also testified that at the time of the seizure the gun was not located on appellant's person but was concealed under the seat of the automobile. On cross-examination, the assistant district attorney asked Morrison the following questions and received the following answers:
"Q. Tell me, are you a good friend of Harry Mimms?
A. I am an acquaintance of him, I know him.
Q. You know him very well would you say?