No. 325 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, No. 1646 October Term 1977
Joseph H. Reiter, Philadelphia, for appellant.
Lee M. Kaplan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hoffman, Eagen and Hess, JJ.*fn*
[ 272 Pa. Super. Page 192]
Frank R. Hart, appellant, appeals from a judgment of sentence of five to fifteen years imprisonment imposed following a conviction of murder of the third degree in a non-jury trial in the Court of Common Pleas of Philadelphia.
Hart advances three assignments of error in support of his request for a new trial. A brief recount of the evidence presented at trial is necessary. Jessie Hines died as the result of a subdural hematoma caused by a blow or blows to the head. Three individuals, two of whom were minors, testified they witnessed Hart punch Hines five or six times shortly before his death. The defense contended that no beating occurred and that the subdural hematoma which caused death was caused by falls taken by the victim as a result of his "degenerate brain condition after years of alcoholism" and "grand mal seizures . . . attributed to withdrawal from alcohol."
Hart's first assignment of error relates to cross-examination by the prosecuting attorney of a defense witness, Hart's mother, who had testified during direct examination that she knew the deceased; that he drank; that he suffered seizures; that he fell when he took seizures; and, that he had been hospitalized as a result. During cross-examination, the following occurred:
"Q. [y]ou're aware that [the victim] did fall and he was injured in the service and a toe was amputated. You know that, don't you?
"[Defense Counsel]: Objection; Your Honor.
"The Court: Objection overruled.
"Q. That was when he was in the service years ago he received an injury and he was getting partial disability from it?
"[Defense Counsel]: Objection.
"The Court: Objection overruled."
Thereafter, the witness explained that the falls she had referred to during direct examination were not related to the injury brought out ...