decided: July 5, 1979.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
WILLIAM HOSKINS, APPELLANT
Nos. 176 and 237 January Term 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 2753 to 2755 November Sessions 1975.
Joel Harvey Slomsky, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div. Asst. Dist. Atty., Stephen S. Seeling, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., did not participate in the consideration or decision of this case. Roberts, J., joins in this opinion and filed a concurring opinion. Larsen, J., concurs in the result. Nix, J., filed a concurring and dissenting opinion.
[ 485 Pa. Page 545]
OPINION OF THE COURT
On May 11, 1976, appellant, William Hoskins, was convicted by a jury in the Court of Common Pleas of Philadelphia of murder of the first degree, possessing instruments of a crime-generally,*fn1 possessing prohibited offensive weapons,*fn2 and criminal conspiracy. The convictions stem from the November 5, 1975 fatal shooting of Herschell Williams. Post-verdict motions were denied, and judgment of sentence of life imprisonment was imposed on the murder conviction. Judgments of sentence of not less than two and one-half to five years imprisonment and not less than five to ten years imprisonment were imposed on the weapons convictions and the criminal conspiracy conviction. The trial court directed these judgments of sentence to run concurrently with the judgment of sentence of life imprisonment. Hoskins appealed to this Court from the judgment of sentence imposed on the murder conviction. An appeal from the judgments of sentence on the remaining convictions was filed in the Superior Court and later certified to this Court.
Initially, Hoskins claims the evidence presented at trial is insufficient to support the convictions in this case. In evaluating the sufficiency of the evidence, the test is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979); Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976). The Commonwealth
[ 485 Pa. Page 546]
may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975); Commonwealth v. Alston, 461 Pa. 664, 337 A.2d 597 (1975). Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered, whether or not the trial court's rulings thereon were correct. Commonwealth v. Boyd, 463 Pa. 343, 344 A.2d 864 (1975); Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975).
Viewed in this light, the record reveals the following:
At approximately 10:15 a. m. on November 5, 1975, Hoskins, who was driving a 1975 Cadillac automobile, arrived at the home of Lonnie Dawson. Dawson exited his home and entered the automobile. The automobile, which was green in color, was owned by Hoskins' friend and employer, Calvin Tilghman. Tilghman lent the automobile to Hoskins on the previous day and did not recover possession of the automobile until after Hoskins was arrested for the crimes involved instantly.*fn3
At approximately 12:15 p. m., a green Cadillac, occupied by three males, was parked at the intersection of Roumfort Road and Bayard Street in Philadelphia. This intersection borders the 8600 block of Bayard Street. The automobile was positioned diagonally across Roumfort Road in a manner
[ 485 Pa. Page 547]
that prevented the normal flow of traffic on that road. Hoskins was the driver of this automobile.
Sometime between 12:20 p. m. and 12:30 p. m., a 1975 green Cadillac was parked and was partially blocking a driveway which runs behind and parallel to the 8600 block of Bayard Street. A male occupied the driver's seat of the automobile. Hoskins, who was wearing a brown suit, a matching brown wide-brimmed hat, and sunglasses, was standing on the corner of Bayard Street and Roumfort Road. Another male, wearing a print shirt and brown "jeff" cap, was seated on the steps leading to 8605 Bayard Street. A few minutes later, Hoskins joined the male sitting on the steps and asked Frederick Robb, who was exiting his home located at 8603 Bayard Street, for the correct time. Robb, who testified at trial, informed Hoskins that he "didn't know" the time and left the vicinity of Bayard Street and Roumfort Road in an automobile driven by a friend, Daniel Parks.*fn4
Subsequently, a male wearing a "brown habit," i. e. brown pants, brown jacket, brown shoes and brown hat, and sunglasses, was sitting on the steps leading to a house located on Bayard Street near Ivyhill Road. This person was holding a bucket and a handkerchief or rag which he ultimately waved in the direction of Ivyhill Road. As the male in the "brown habit" waved the handkerchief or rag, the victim, Herschell Williams, accompanied by his two children, exited his home which was located on Bayard Street near Ivyhill Road.
[ 485 Pa. Page 548]
The male in the "brown habit" walked up Bayard Street toward Ivyhill Road. Another male, wearing a brown "jeff" cap, turned the corner of Ivyhill Road and walked down Bayard Street toward Roumfort Road. Both males*fn5 fired numerous gunshots at Williams. After fatally wounding*fn6 Williams, both males ran down Bayard Street toward Roumfort Road.
At approximately 1:07 p. m., the Philadelphia police spotted a 1975 dark green Cadillac in an eastbound lane of the Schuylkill Expressway just west of Montgomery Drive. As a result of information received at the scene of the fatal shooting, the police stopped the automobile in the vicinity of
[ 485 Pa. Page 549]
the Spring Garden Street exit of the expressway.*fn7 The occupants of the automobile, Hoskins, Lonnie Dawson, and Joseph Rhone, were placed under arrest. When arrested, Hoskins, who was seated in the front passenger seat, was wearing a brown suit, wide-brimmed hat, and sunglasses. The male occupying the rear seat wore a "jeff" cap.
The 1975 Cadillac was searched pursuant to a search warrant. The police recovered two loaded revolvers which were hidden under the dashboard approximately three to four inches to the left of the glove compartment. The police also searched the immediate vicinity of Bayard Street and Roumfort Road. Eventually, they recovered two weapons from a sewer located on the southeast corner of Roumfort Road and Cheltenham Avenue. One of the weapons was a .32-20 revolver and the other was a .357 magnum revolver. Both contained six fired cartridges.
Subsequently, a firearms examiner, employed by the Philadelphia Police Ballistics Laboratory, conducted an examination of the physical evidence involved in this case. The results of this examination showed that the projectiles removed from the victim's body were fired by the .32-20 revolver recovered from the sewer; that the spent cartridges found in the .357 magnum revolver recovered from the sewer were fired by that weapon;*fn8 and, that both of the revolvers found in the Cadillac were operable.
At trial Hoskins relied on an alibi defense, namely, that he was in another section of the city at approximately 12:15 p. m. on November 5, 1975, and could not, therefore, have been one of the individuals who fatally wounded Williams. In
[ 485 Pa. Page 550]
support of this theory, Hoskins presented the testimony of Rene Williams, the victim's sister. Miss Williams testified that Hoskins was a friend of her brother; that, between 12:15 p. m. and 12:25 p. m. on November 5, she saw Hoskins at 41 South 40th Street in the West Philadelphia section of the city; and, that she did not remember seeing a green Cadillac. However, Miss Williams also admitted she learned Hoskins was a suspect in her brother's fatal shooting on November 6, 1975, but never revealed she saw Hoskins on 40th Street until one and one-half weeks prior to trial.
Hoskins took the stand in his own defense. He testified that, at approximately 11:30 a. m. on November 5, 1975, he arrived in West Philadelphia; that, at approximately 12:15 p. m., he saw Rene Williams at 41 South 40th Street; that he did not drive Tilghman's Cadillac on November 5, 1975; that he borrowed Tilghman's automobile during the week of the shooting, but returned the keys prior to November 5; that he did not drive the automobile to Dawson's home on the morning of the shooting; that Dawson also worked for Tilghman; that he saw Dawson in West Philadelphia driving the Cadillac on the day of the shooting; and, that Dawson agreed to drive him from West Philadelphia to his home.
The preceding evidence, both direct and circumstantial, when considered in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, is sufficient to support the convictions of murder of the first degree, possessing instruments of a crime-generally, and criminal conspiracy. However, the evidence does not support a conviction of possessing prohibited offensive weapons.
The crime of possessing prohibited offensive weapons is defined at 18 Pa.C.S.A. § 908. Subsection (c) of that section reads:
"Definition -- As used in this section 'offensive weapon' means any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag,
[ 485 Pa. Page 551]
metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose."
Clearly, the revolvers involved instantly are not specifically enumerated in the definition of an offensive weapon. Therefore, in order to sustain the conviction of possessing prohibited offensive weapons, we must conclude the revolvers are "other implement[s] for the infliction of serious bodily injury which [serve] no common lawful purpose." Such a conclusion is unwarranted. See Commonwealth v. Fisher, 485 Pa. 8, 400 A.2d 1284 (1979). See also Commonwealth v. McHarris, 246 Pa. Super. 488, 371 A.2d 941 (1977). Hence, the judgment of sentence imposed on the conviction of possessing prohibited offensive weapons must be reversed and the charge dismissed.
In addition to his claim that the evidence was insufficient to support the convictions, Hoskins urges he was deprived of a fair trial by conduct pursued by the assistant district attorney during the trial. We agree and reverse.*fn9
Specifically, Hoskins complains that numerous times throughout the cross-examination of Hoskins and Rene Williams, the assistant district attorney posed improper and inflammatory leading questions concerning "drug trafficking" and the "Muslim" religion.*fn10 One of the leading questions,
[ 485 Pa. Page 552]
which is the subject of complaint, was posed by the assistant district attorney during the cross-examination of Hoskins. The relevant portion of the record is this:
"Q. You know Robert Blair, don't you, her common-law husband?
"[Defense Attorney]: Objection, Your Honor.
"The Court: Overruled.
"Q. You know Robert Blair, don't you?
"A. I know Blair.
"Q. That's Rene Williams' common-law husband, right?
"A. I don't know.
"Q. You never saw them together?
"A. Yes, I have saw them together.
"Q. And you know that Robert Blair is in the drug business, don't you? Don't you?
"A. No, I don't.
"[Defense Attorney]: Objection.
"The Court: Yes.
"[Defense Attorney]: I move that be stricken and move for a mistrial.
"The Court: Objection sustained.
"[Assistant District Attorney]: Judge --
"[Defense Attorney]: I move for a mistrial.
"The Court: Objection sustained. It shall be stricken. The jury will disregard it." [Emphasis added.]
We acknowledge the above emphasized question is not necessarily an improper and inflammatory leading question on its face. However, the improper and inflammatory inference suggested by this question become apparent when the question is considered in the context of the factual circumstances preceding the request for a mistrial.
Prior to defense counsel's motion for a mistrial, the assistant district attorney asked Miss Williams whether her
[ 485 Pa. Page 553]
mother was presently selling drugs; whether the victim told her the "Muslims" were looking for him; whether the victim sold drugs from his house; whether the victim wore a bullet-proof vest; whether she belonged to the "Muslims" as did the victim; and, whether the victim was in fact a "Muslim." Furthermore, during the cross-examination of Hoskins, the assistant district attorney asked several questions concerning his involvement with the "Muslim" religion.*fn11 Objection to all of these questions were entered and several of the objections were sustained.*fn12
[ 485 Pa. Page 554]
The assistant district attorney posed the preceding leading questions even though the Commonwealth's case-in-chief did not even intimate that "drug trafficking" and the "Muslim" religion were relevant issues in this case.*fn13 Further,
[ 485 Pa. Page 555]
this type of cross-examination was pursued after the following facts were elicited at trial: (1) Miss Williams, the only alibi witness, had a very close relationship with her brother; (2) Hoskins and the victim were close friends for approximately four years; (3) Hoskins knew Blair; (4) Blair was the alleged common-law husband of Miss Williams; and, (5) prior to November 5, 1975, Miss Williams was acquainted with Hoskins. Thus, the leading question regarding the drug activities of Robert Blair, the alleged common-law husband of Hoskins' only alibi witness, was the culmination of a strategy calculated to try the instant case on issues not properly before the jury. When viewed in the factual context present at trial, the question, which resulted in the mistrial request, suggested to the jury that, through their association with Blair, the victim, and Williams' mother, Hoskins and his only alibi witness, Miss Williams, were both involved in drug trafficking. Furthermore, this inference of illegal drug trafficking on the part of Hoskins and his only alibi witness was coupled with the suggestion that Hoskins, Miss Williams, and the victim were all associated with a religion which had a reputation for criminal activity.*fn14 Such inferences are clearly improper and inflammatory.
We acknowledge that every improper and inflammatory leading question by a district attorney does not necessarily require a new trial. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). Furthermore, the trial court has discretion in granting a mistrial, and instructions to the jury to disregard an improper and inflammatory question are adequate in many instances. However, we also acknowledge the effect of an improper and inflammatory leading question posed by a prosecutor "depends upon the atmosphere of the trial." See Stoltzfus, supra.
After reviewing the instant trial record up until the question which resulted in the mistrial request,*fn15 see e. g., Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977), we
[ 485 Pa. Page 556]
conclude the "atmosphere of the trial" was such that the "unavoidable effect" of the improper and inflammatory leading question pertaining to Blair's drug activities was to form in the minds of the jury bias and hostility toward Hoskins and thus prevent an objective verdict. We must, therefore, conclude that the trial court abused its discretion in not granting a mistrial. The "only appropriate relief" given the "atmosphere of the trial" and the prejudicial nature of the assistant district attorney's leading question was for the court to have declared a mistrial.*fn16 See Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971).
The judgment of sentence imposed on the offense of possessing prohibited offensive weapons is reversed and the charge is dismissed. The judgments of sentence imposed on the conviction of murder, conspiracy and possessing instruments of a crime-generally are reversed, and as to these charges a new trial is granted.
ROBERTS, Justice, concurring.
I join in the Opinion of the Court. "The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 257, 92 L.Ed. 154, all practicing lawyers know to be unmitigated fiction." Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Jackson, J., joined by Frankfurter & Murphy, JJ., concurring). This case amply demonstrates that what Justice Jackson said in 1949 applies today, thirty years later, with full force.
NIX, Justice, concurring and dissenting.
I agree with the majority's disposition of appellant's sufficiency of the evidence claim and join in the conclusion that the evidence does not support a conviction of possessing prohibited offensive weapons as defined in 18 Pa.C.S.A. § 908. I do not share the view of my brethren that a new trial should be allowed on those charges for which the
[ 485 Pa. Page 557]
Commonwealth did provide sufficient evidence to establish guilt.
The specific reason assigned for the reversal was a series of questions by the assistant district attorney addressed to the defendant relating to an individual by the name of Robert Blair.*fn1 Robert Blair was allegedly a romantic partner of Rene Williams, the alibi witness for the defense. Ms. Williams was the sister of the victim, thus her testimony for the defense, on its face, could have been most compelling. It was therefore incumbent upon the prosecution to establish a basis for challenging her credibility. While the Commonwealth's attorney's attempt to attack this witness's testimony may have been inartfully done, I do not believe it constituted the type of grievous error that would necessitate a new trial.
The prosecuting attorney asked the witness, "And you know that Robert Blair is in the drug business, don't you? Don't you?" In response the appellant replied, " No, I don't." Although I would agree that it was naive for counsel to believe that he could establish this fact from that witness in this manner, any purported harm was negated by the court's ruling sustaining the objection to the question and instructing the jury to disregard the question and answer.*fn2 Under the circumstances, I do not believe that this series of questions
[ 485 Pa. Page 558]
and responses had the "unavoidable effect" of prejudicing the jury and preventing an objective verdict based upon the properly admitted evidence. See Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973); Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968).
Recognizing the weakness of it's position, the Majority attempts to bolster its view by suggesting that the references to appellant's religious affiliations should be considered in weighing the prejudice of this testimony. Any person in this state and in this nation is constitutionally guaranteed the freedom of selecting the religious belief of his or her choice. See U.S.C.A.Const., Amend. 1; Pa.Const., art. 1, § 3. This is a fundamental tenet of this nation and any attempt to undermine it cannot be condoned. Thus when one requests that a mistrial should be declared where the prosecution improperly uses a religious affiliation as a basis for attacking the credibility of a witness who is a member of the particular faith or sect identified, that request should be granted. Commonwealth v. Mimms, 477 Pa. 553, 385 A.2d 334 (1978).*fn3
However, unlike the situation presented in Mimms, here the court sustained the objections to this questioning and the defense's request to strike the testimony was granted. There was no application for the withdrawal of a juror in reference to this complaint, therefore appellant is not entitled to a relief which he did not seek. Commonwealth v. Hill, 479 Pa. 346, 388 A.2d 689 (1978); Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976); Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976); Commonwealth v. Glenn, 459 Pa. 545, 330 A.2d 535 (1974). Nor should the unrequested relief be given under the subterfuge of evaluating an unrelated claim by finding a cumulative effect which requires reversal. I therefore dissent from that part of the mandate which reverses the judgment of conviction of murder
[ 485 Pa. Page 559]
of the first degree, possessing instruments of crime -- generally, and criminal conspiracy and awards a new trial.