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filed: January 11, 1980.


No. 123 and 124 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, Nos. 2343, 2344 December Term, 1975 and No. 1497 February Term, 1976.


Robert B. Mozenter, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman,*fn* JJ.

Author: Montgomery

[ 275 Pa. Super. Page 411]

Appellant, Robert J. Harley, was convicted by a jury of murder and related offenses arising from the shooting death of a Philadelphia police officer. Post-trial motions were filed and denied by the lower court, which imposed concurrent prison terms of ten to twenty years for murder in the third degree, five to ten years for aggravated assault, and two and a half to five years for possession of an instrument of crime. This direct appeal followed.

The record shows that on October 20, 1975, the decedent, Officer Artimus Johnson, and his partner, Officer Richard Smith, were detailed to the narcotics unit of the Philadelphia Police Department. Both men were working undercover and had considerable experience as narcotics officers. At approximately 8:00 p. m., Officers Smith and Johnson proceeded to an address in Philadelphia to investigate the sale of illicit drugs at that location. The officers hoped to make a drug purchase in order to acquire sufficient evidence to make an arrest. Accompanied by an informant, the officers accomplished their goal of purchasing a quantity of drugs from the Appellant.

After making the purchase, the two policemen met on a nearby corner and formulated an arrest strategy whereby Officer Smith would return to the address and announce

[ 275 Pa. Super. Page 412]

    himself first, with Officer Johnson following immediately behind. Upon their return to the address, and after Appellant had opened the door, Officer Smith introduced himself as a police officer, displayed his badge and identification, and placed his weapon against Appellant's stomach. Officer Johnson then stepped onto the porch and after assuming a position directly behind Officer Smith, took out his badge and identification and announced, "Police Officer Johnson. You are under arrest." Officer Smith, who was aware that there were others in the house, took about two or three steps inside when he heard a muffled gunshot. As he turned, he saw Officer Johnson crouched over and pressed against Appellant. Simultaneously, he saw Appellant raise his arm and fire a second shot at him. A brief gun battle ensued in which no one was injured. Officer Johnson died later that night from a wound caused by a single bullet fired at a distance of only three to nine inches.

Following the shooting, Appellant ran out of the house, disposed of his weapon, and remained at large until November 14, 1975, when he surrendered himself in Philadelphia.

Additional facts will be discussed as they become pertinent to the numerous issues raised in this appeal. We will consider each issue individually and in the sequence in which it is presented by Appellant.

The Admission of the Alleged Murder Weapon into Evidence

Appellant contends that the lower court abused its discretion in admitting into evidence a gun which was recovered near the scene of the crime on the night of the incident. Specifically, Appellant argues that the Commonwealth failed to demonstrate that the weapon offered into evidence was employed in the commission of the crime, and that the alleged murder weapon had no probative value because Appellant had acknowledged his involvement in the shootout. At trial, however, Appellant raised no objection to the admission of this evidence. Therefore, the issue has been waived. Commonwealth v. Reid, 475 Pa. 54, 379 A.2d 572

[ 275 Pa. Super. Page 413]

(1977); Commonwealth v. Presbury, 475 Pa. 48, 379 A.2d 569 (1977); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Missing Witness Charge

Appellant contends that the trial court erred in refusing to instruct the jury that it could draw a negative inference from the fact that the Commonwealth failed to call three witnesses: Michael Mason, Richard Johnson and Cosby Jones. We do not agree.

The missing witness rule provides that a negative inference may be drawn from the failure of a party to call a particular witness who was in his control. Commonwealth v. Gibson, 245 Pa. Super. 103, 104, 369 A.2d 314, 315 (1976). However, each of the following circumstances represents an exception to that rule:

1. The witness is so hostile or prejudiced against the party expected to call him that there is a small ...

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