Nos. 170 and 171 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, at Nos. 1113 and 1115 November Term, 1976
Lawrence S. Rosenwald, Philadelphia, for appellant.
Joseph Casey, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
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Appellant, William Shepherd, was convicted by a jury of murder of the first degree and possession of instruments of crime. Post-verdict motions were denied and appellant was sentenced to a term of life imprisonment on the murder
[ 269 Pa. Super. Page 294]
charge and a prison term of one to five years on the count charging possession of instruments of crime. This appeal followed.
Appellant first argues that the testimony of a Commonwealth witness gave rise to an impermissible reference to prior criminality, and that his subsequent motion for mistrial was improperly denied. The applicable standard is, by now, well settled: mistrial is warranted when a juror "could reasonably infer from the facts presented that the accused had engaged in prior criminal activity." Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972); Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978).
The testimonial reference complained of occurred during the direct examination of the police ballistics expert. When asked to describe the manner in which ballistics tests were conducted the witness testified, in part:
"As the firearm would be submitted to our lab it would first be examined -- it would be checked for any presence of foreign material. It would be checked to see that the barrel is clear of any obstructions. All of these would be noted. The findings would be noted.
"The firearm would then be fully loaded with the ammunition designed for that firearm. It would be taken into a room within our laboratory designated just for test firing of arms. It would then be discharged into a cotton recovery system that we utilize. That test fired projectile would be recovered from the cotton and then examined and compared against the evidence specimen and whatever outstanding cases that our laboratory may have. By outstanding cases, I refer to shootings where no firearm has been recovered."
In an attempt to clarify any uncertainty as to any inferences as may have arisen from the above, the ...