Nos. 86 and 87 Special Transfer Docket, APPEAL FROM THE JUDGMENT OF THE COURT OF COMMON PLEAS CRIMINAL SECTION OF THE COUNTY OF PHILADELPHIA, PENNSYLVANIA, JULY TERM, 1976, NOS. 137, 138, 139.
Irving W. Backman, Philadelphia, for appellant.
Thomas J. McGarrigle, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn*
[ 271 Pa. Super. Page 94]
The defendant was arrested on May 13, 1976. He was charged with murder, possession of instrument of crime, and criminal conspiracy arising from a shooting which took place on July 30, 1973. On November 15, 1976, the defendant's motion to suppress identification testimony was denied; and the defendant was tried by jury. On November 17, 1976, the defendant was found guilty of murder in the first degree, and of the other charges. Motions for new trial and in arrest of judgment were argued and denied. The defendant, on February 28, 1977, was sentenced to life imprisonment in a state correctional institution. The defendant has appealed.
[ 271 Pa. Super. Page 95]
On July 30, 1973, an adult witness saw the shooting of the decedent from an open, screened front window of her uncle's home. The shooting took place approximately fifteen feet in front of this front window. The adult witness' daughter, nine years old, was playing outside of the house and also witnessed the shooting. They saw the decedent run down the street, chased by the defendant who was on foot, along with another man who was riding a bicycle. The man on the bicycle handed the gun to the defendant and told him to "hit him." The defendant fired the gun. The man on the bicycle then said, "hit him again." The defendant again fired the gun at the decedent. Both witnesses saw the defendant hand the gun back to the man on the bicycle and then flee. The nine year old witness was shot in the hand by one of the bullets. Both witnesses identified the defendant as the man who shot the decedent from photographs shown to them by the police on the day of the shooting.
The defendant has raised four issues on appeal. The first issue is whether it was highly prejudicial to the defendant to restrict defense cross-examination of a witness when the defense attempts to show that the witness' testimony at trial was inconsistent with her testimony at the pre-trial suppression hearing.
The defense counsel asked the nine year old witness if she remembered whether it was she or her mother who first picked out the defendant's photograph at the police station. She answered that she didn't remember. Defense counsel then asked her if she remembered testifying at the pre-trial suppression hearing that her mother picked out the picture first. She answered in the negative. Defense counsel again asked her if she remembered that her mother picked out the picture first. She again answered in the negative. Defense counsel asked again if she remembered that her mother said when she saw the picture "this looks like the boy." The Commonwealth's objection was sustained. The defense counsel asked again if she remembered her mother saying, "this looks like the boy." The Commonwealth objected and this was sustained. The defense counsel requested a sidebar
[ 271 Pa. Super. Page 96]
conference, which was held off the record; and, when the defense counsel returned he stated that he had no further questions of the witness.
The defendant failed to make an offer of proof at trial as to the reason why the defense counsel's questions of the nine year old witness should have been admitted. Additionally, when the sidebar conference was ...