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COMMONWEALTH PENNSYLVANIA v. MICHAEL S. BARBER (02/01/80)

filed: February 1, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL S. BARBER, APPELLANT



No. 2210 October Term, 1976, Appeal from Judgment of Sentence entered on July 22, 1976, in the Court of Common Pleas, Trial Division, of Philadelphia at Nos. 1812 and 1813 September Term, 1975.

COUNSEL

Stanley Bashman, Philadelphia, for appellant.

Lee F. M. Kaplan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., concurs in the result.

Author: Cavanaugh

[ 275 Pa. Super. Page 149]

As a result of a gang killing in which he was allegedly involved, appellant was charged with murder, voluntary manslaughter and involuntary manslaughter as well as criminal conspiracy to commit murder, possession of an instrument of crime, generally, and other weapons offenses. After a trial before Mirarchi, Jr., J. and a jury he was convicted of criminal conspiracy and possession of an instrument of crime, generally, and acquitted of the remaining charges. Post trial motions were argued and denied and appellant was sentenced to seven and one-half to fifteen years imprisonment.

In the latter part of August, 1975, appellant was a member of the Mongo Nation, a teenage gang operating in West Philadelphia.*fn1 On August 27, 1975, Walter Hannah, also a member of the Mongo Nation, was shot by a member of a rival gang known as the Zips. On September 1, 1975, Hannah was chased out of the neighborhood which the Zips considered to be their territory. After the second incident involving Hannah, some of the members of the Mongo Nation met and discussed the possibility of revenge on the Zips. It was decided to have a further discussion that evening at Kevin Guy's house. At about 7:00 p. m. appellant arrived at Guy's house carrying a rifle in a brown box. Some eleven Mongo Nation members, or associates, attended the meeting, including appellant, Walter Hannah, Kevin Guy, Derick Palmer, and Calvin Frisbee. A plan was devised to exact the desired revenge from the Zips.

It was known that the Zips were then having a block party a short distance from Kevin Guy's house. Appellant

[ 275 Pa. Super. Page 150]

    told Hanna, Palmer and Frisbee to go to the block party and shout "Mongo" in order to induce the Zips to chase the Mongo Nation members. The members of the Mongo Nation were to lure the Zips past Guy's house where appellant was to lie in wait with his rifle. The plan was put into operation, and the Mongo Nation members went to the block party. Palmer shouted out "Mongo" and, as expected, a large number of Zips pursued the Mongo Nation members who led them past Guy's house. As the Zip members approached Guy's residence, appellant fired his rifle toward the running Zips. Someone with the Zips also fired a weapon. Rudolph Edwards, a fifteen year old boy who was among the crowd, was shot in the head and subsequently died.

On appeal, appellant argues that there are nine areas in which the court below erred. We will discuss each of these issues, although not necessarily in the order in which they were raised by appellant.

I

Appellant's first contention is that the court below erred in allowing the prosecution to plead surprise in cross-examining its witness, Calvin Frisbee.

Prior to the trial, Frisbee gave a written statement to the police in which he stated that he and some other members of the Mongo Nation went to Guy's house and that the appellant directed them to go to the Zip's block party and when something happened they were to run back past Guy's house. Subsequently, Frisbee and Derrick Palmer went to the block party in furtherance of this plan. In his pre-trial statement Frisbee stated:

"We went up to where the crowd was . . . We talked to some girl we know as Angie. That's Mushmouth's [Palmer's] girlfriend. He was still down at the corner hollering Mongo. That's when the Zip got off the steps and was coming down the little block. They started chasing down 57th Street. They were shooting at us. I don't know who the boys were from Zip. . . . We

[ 275 Pa. Super. Page 151]

    ran down 57th Street past Ace [appellant]. He was standing between the truck and the tree, He was shooting. He had the rifle in his hands. I couldn't tell how many shots were fired." (3.54).

At trial, Frisbee was called to testify on behalf of the prosecution. He testified that when he arrived at Guy's house that appellant was not there yet but that he came subsequently. Appellant had nothing with him when he arrived at the house. Appellant said nothing about going to the block party. Frisbee stated that he went by himself to the block party. He testified that at the block party he did not talk to anyone. He heard someone shout Mongo "real loud" and "I seen one of the guys from the Zippers come out with a shotgun, and he bust on me". He further testified at trial that after the shooting started by the Zippers he ran away with fifty or sixty people chasing him. He did not know who shouted Mongo and when he ran back to Guy's house he did not see anyone near the tree in front of Guy's house.

The testimony of Calvin Frisbee at trial was different in material respects from that given in his pre-trial statement. The assistant district attorney pleaded surprise and was permitted to cross-examine her own witness. Appellant contends that this was error as the district attorney was aware in advance of trial that Frisbee would be uncooperative with the Commonwealth.

It is within the sound discretion of the trial court to decide whether counsel may exercise the right of cross-examination of his own witness. Commonwealth v. Dancer, 452 Pa. 221, 225, 305 A.2d 364, 366 (1973); Commonwealth v. Quartman, 253 Pa. Super. 460, 466, 385 A.2d 429, 433 (1978). In order for a party to plead surprise and cross-examine his own witness, the following requirements must be met: (1) the testimony given by the witness must be unexpected; (2) the testimony must be contradictory to statements the witness has made earlier; (3) the ...


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