No. 283 March Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC7508674
Lester G. Nauhaus, John H. Corbett, Jr., Asst. Public Defenders, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles E. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Nix, J., filed an opinion in support of affirmance. Larsen, J., filed an opinion in support of affirmance, which Eagen, C. J., joined. O'Brien, J., filed an opinion in support of reversal which Roberts and Manderino, JJ., joined. Roberts, J., filed an opinion in support of reversal which Manderino, J., joined.
The court being equally divided, the judgment of sentence is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
I believe the trial court should be affirmed for two reasons. First, this claim has been waived because it has not been properly preserved for appellate review. Trial counsel objected on the basis that the question was highly prejudicial rather than challenging its form. "It is a fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court." See Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975). Second, I do not accept the premise that an objection based upon the prosecutor's questioning of a character witness would have been meritorious and if pursued would have justified the reversal of the judgment. The character witness was asked if she was "aware that in May of 1974 there had been an altercation between George and Mary Garner in which it is alleged that she shot her husband"? The answer given by the witness in response was "No. . . ." Therefore, this question was harmless. It is a fundamental rule of evidence that the questions of counsel do not supply the facts in the case. To the contrary, it is the witness' answer. Cf. Wigmore on Evidence §§ 771, 780 (3d edition, 1940), Pittman v. U. S., 42 F.2d 793 (8 Cir.
). Here, the answer did not confirm the offensive fact suggested in the question.
While the question may have been improper, it did not reach the degree of offensiveness that would have required reversal. If the answer to the question had tended to confirm the happening of the objectional event, I might be persuaded to reach a contrary result. Here, at best, the answer was neutral and in fact did not provide evidence to this jury of prior unlawful conduct on the part of appellant. Moreover, if the prosecutor had repeatedly attempted to utilize this type of questioning to create an impression that appellant possessed a bad reputation, I would distinguish such a situation from the instant complaint and consider it to be a far more serious allegation.
Opinion IN SUPPORT OF AFFIRMANCE
Appellant Mary Garner was convicted by a jury of murder of the third degree. Post-verdict motions were denied and this direct appeal followed.
Appellant contends that trial counsel was ineffective on the grounds that he failed to raise in post-verdict motions the issue of whether the trial court erred in permitting the Commonwealth to cross-examine defense witness Dorothy Froehlich as to whether she was "aware that in May of 1974 there had been an altercation between George [Garner] and Mary Garner [appellant] in which it was alleged that she had shot her husband?" Appellant argues that the aforementioned question was improper on the grounds that the witness was not asked if she had heard from persons in the neighborhood of the incident in question.
The record unambiguously indicates that when the prosecutor asked the question, it had already been established that the defense witness' testimony concerning appellant's reputation was based on what she had heard from the individuals with whom appellant (and the witness) worked:
Q [Prosecutor] I assume, then, that you are saying that you heard people in the community where she ...