No. 169 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Berks County, at No. 77-01-6401
Henry T. Crocker, Pottstown, for appellant.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
[ 269 Pa. Super. Page 287]
Appellant, Langston Watson, was convicted by a jury of murder in the third degree. Post-verdict motions were denied and appellant was sentenced to a prison term of nine to twenty years. This appeal followed.
The facts are as follows. At 4:38 A.M. on January 9, 1977, a City of Reading ambulance driver was sent to a Reading address where he found a little girl, Desiree Singleton, age 7, lying lifeless on a sofa with a woman attempting to give her mouth to mouth resuscitation. Finding no sign of life in the child, the ambulance driver asked those present what had happened. Appellant Langston Watson stated that he had beat the child the prior evening while disciplining her. Police were called and appellant admitted to beating the child across the buttocks with a chair leg and slapping her in the face. The victim's eleven year old brother, Curtis, testified that he had seen his sister tied to a pole in the cellar while appellant slapped her, causing her head to strike the pole to which she was tied. The cause of death was swelling of the brain caused by multiple trauma to the skull.
Appellant first argues the trial court erred in refusing a motion for mistrial sought because a table leg marked Exhibit "B" was seen by the jury but never admitted into evidence. The table leg was marked and was left on a table with other exhibits. The prosecutor attempted to introduce the leg by testimony of a police officer who testified he was given the leg by the victim's brother who
[ 269 Pa. Super. Page 288]
found it in the victim's bedroom. Further, in appellant's confession, he admitted beating the victim with the table leg in her bedroom. The trial court, however, found an insufficient nexus and ruled the exhibit inadmissible. The table leg was immediately removed from the courtroom, and the court instructed the jury to consider only the evidence which had been admitted.
The American Bar Association Standards Relating to the Prosecution Function, § 5.6(c) (approved draft 1971) states:
"It is unprofessional conduct for a prosecutor to permit any tangible evidence to be displayed in the view of the judge or jury which would tend to prejudice fair consideration by the judge or jury until such time as a good faith tender of such evidence is made."
In Commonwealth v. Gardner, 246 Pa. Super. 582, 371 A.2d 986 (1977), this court was required to apply the above-quoted section where a prosecutor displayed to the jury two jackets, a pistol and several bullets which were subsequently held inadmissible ...