No. 510 January Term, 1976, Appeal from the Judgment of Sentence imposed May 11, 1976 by the Court of Common Pleas, Trial Division-Criminal Section, of Philadelphia County at No. 1532 June Term, 1974
Abner H. Silver, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty., for Law, Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., dissents.
Appellant, Herman Fuller, was arrested on May 3, 1974, in connection with the March 14, 1974, shooting death of Kenneth Bullard. Appellant was brought to trial before a judge and jury on January 22, 1975, charged with murder, conspiracy,
possessing instruments of crime, and firearms violations. Appellant was found guilty of murder in the first degree and conspiracy. Post-verdict motions were denied, and sentence of life imprisonment was imposed for the murder conviction and a concurrent one to two year prison term was imposed for the conspiracy conviction. This appeal from the homicide conviction followed. No appeal was taken from the judgment of sentence imposed on the conspiracy conviction.
In this appeal, appellant raises several allegations of trial error in support of his contention that a new trial is required. Because we agree that one of these issues has merit and mandates that appellant be retried, we need not now address the other issues raised.
The prosecution's evidence at trial established that at about 10:30 a. m., on March 14, 1974, appellant and another man rang the doorbell of the victim Bullard's apartment. The victim's mother, Victoria Bullard, went to the doorway of her and her son's second-floor apartment and spoke to appellant and his companion who were standing at the foot of the stairway leading to the second floor. They asked if Kenneth Bullard was at home and, because she had seen appellant several times before in her son's company, Victoria Bullard told her son that "friends" were there to see him. Appellant and his companion refused an invitation to come up to the apartment, and accordingly, Kenneth Bullard went down the stairway to meet them. Almost immediately after Kenneth Bullard descended the stairway, appellant and his companion shot Bullard in the back as he attempted to flee up the stairs. Bullard was struck by two bullets, one fired from appellant's gun, and one fired from the gun of appellant's companion. Appellant and his companion then fled the scene. Kenneth Bullard died less than one hour later from extensive internal bleeding caused by the gunshot wounds.
The defense presented evidence of an alibi at trial, contending that appellant was working at the time of the slaying, and further contending that Victoria Bullard's identification of appellant was erroneous.
In order to bolster its proof that appellant was one of Kenneth Bullard's slayers, the prosecution called as a witness one Minnie Harley. Harley testified that she knew appellant; that she was walking home from a local barroom with appellant on March 16, 1974, two days after the Bullard homicide; and that appellant had a pistol in his possession on that date. Over defense objection, Harley also testified that appellant struck her with the pistol and threatened to shoot her with it. She also testified that when the police arrived at the street corner where appellant allegedly struck her with the pistol, appellant tossed the gun into a nearby vacant lot. The pistol was retrieved by police, however, and ballistics tests established that it had fired one of the bullets that killed Kenneth Bullard.
At the commencement of Harley's testimony for the prosecution's case in chief, appellant's trial counsel objected and the following transpired in the trial judge's chambers, out of the hearing of the jury.
"[ASS'T. DIST. ATTORNEY]: I think counsel is aware of what this witness will prove. This witness was with the defendant when he attempted to rape her. She will not mention that. He hit her with a gun and threatened her with that gun. The police came. That gun was recovered. That gun was the murder weapon, one of the two murder weapons.
[DEFENSE COUNSEL]: Now, my objection would be to any mention of her being struck by the defendant with that gun. I think it interjects a separate and unconnected and unrelated criminal offense. . . ."
"I think that there is no question that this woman can take the stand and testify that she saw a gun and perhaps even identify the gun. But any mention of what this man did with that gun on that occasion, I would feel is objectionable and just too prejudicial in a homicide case."
Appellant's trial counsel again objected, but was overruled, and the witness was then permitted to testify as outlined above.
Appellant now argues, as he did in post-verdict motions, that it was reversible error for the trial court to permit the prosecution to introduce such evidence of independent criminal activity allegedly engaged in by appellant. The prosecution counters that the testimony regarding appellant's assault and battery of the witness two days after the Bullard slaying ...