No. 190 October Term, 1978, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County at Nos. 1552, 1554, 1549, 1557-64 October Session, 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant Summers, at No. 190.
H. David Spirt, Norristown, for appellant Lawrence, at No. 248.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Van der Voort, Wieand and Lipez, JJ.
[ 269 Pa. Super. Page 439]
These are two appeals in criminal charges against two defendants, tried together in the lower court, and consolidated in our court for argument and disposition.
Both appellants were found guilty by a jury of aggravated assault and possession of an instrument of crime, and acquitted of robbery and conspiracy.
The evidence adduced at the trial indicated that both defendants and a third man made an aborted effort to rob a billiard parlor operated by one James Cleveland. The three fled into the street pursued by Cleveland carrying an unloaded shot gun. Cleveland's son, James Williams, joined the pursuit, and a bullet hit his eye, causing a total loss of the eye.
Williams did not see who shot him. Cleveland testified that defendant Summers (nickname "Baker") shot Williams.
[ 269 Pa. Super. Page 440]
Summers denied that he shot Williams, or even had a weapon in his possession (N.T. 1089). Lawrence (nickname "Moose") denied that he had a gun in his possession on the night in question, or that he had shot Williams (N.T. 803, 804); he admitted he had seen Summers in the general area earlier in the evening, but not in the immediate area where the shooting occurred (N.T. 845).
Williams and Cleveland were the first two prosecution witnesses. The third was an Officer William McQuillan. He testified that he received a radio call at approximately 2:20 A.M. on September 15, 1976, and went to the corner of 16th and Fontain.
When he arrived, the officer testified that he saw (N.T. 630) "a Negro male . . . with his hand over his eye crying with blood pouring out of his eye . . ."; that a Pearl Dickins was present, to whom he spoke (N.T. 634) and who "stated to me that Baker shot her brother."
This evidence was received after a side-bar offer, against the objection of the attorney for Summers (N.T. 631-633). In the colloquy it was developed that Pearl Dickins was the sister of Williams and daughter of Cleveland. The prosecuting attorney said that she was "an eyewitness to the shooting" (N.T. 632). There was no evidence to support this statement; that she would not be called as a prosecution witness, but was "available" (N.T. 633).
The court permitted the officer's testimony to be received in evidence. During the trial, Judge Guarino ...