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COMMONWEALTH PENNSYLVANIA v. WILLIAM NESBITT (02/29/80)

filed: February 29, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM NESBITT, APPELLANT



No. 1160 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, Robbery, Nos. 1344-1352, April Term, 1977.

COUNSEL

John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Hoffman

[ 276 Pa. Super. Page 3]

Appellant contends that (1) the lower court erred in denigrating the credibility of a defense witness; (2) the lower court erred in excluding extrinsic evidence offered to

[ 276 Pa. Super. Page 4]

    prove prior inconsistent statements of Commonwealth witnesses; (3) the lower court erred in failing to give a missing witness charge; and (4) comments made by the prosecutor during closing argument to the jury were improper and deprived him of a fair trial.*fn1 We disagree and, accordingly, affirm the judgment of sentence.

On April 12, 1977, appellant was arrested and charged with conspiracy and four counts of robbery in connection with the robbery of four individuals in a North Philadelphia apartment. The primary factual dispute at trial was whether appellant had assisted three individuals in committing the robbery or was an innocent bystander. The jury found appellant guilty on all the charges. Following the denial of post-trial motions, the lower court imposed sentence. This appeal followed.

Appellant first contends that the lower court denigrated the credibility of a police detective called by the defense to testify concerning prior inconsistent statements of two Commonwealth witnesses. Defense counsel sought to impeach the credibility of Samuel Robinson, one of the robbery victims by showing that his trial testimony was contrary to statements appearing in a police report prepared after an interview with a detective conducted shortly after the robbery. Defense counsel asked the prosecutor for a "report on this witness's statement." The prosecutor responded that there was no statement, only the police version of what the witness said. Defense counsel insisted that the police version was a statement. At a sidebar conference, the prosecutor told the trial judge that he had no objection to the use of the police report on cross-examination but that he did object to defense counsel's characterization of the report as a "statement" of the witness. He asked the judge to clarify

[ 276 Pa. Super. Page 5]

    the nature of the report. Defense counsel stated that he did not object to such an explanation. Subsequently, Robinson denied making a certain statement to the detective. Defense counsel then asked Robinson why the detective had this statement in his report. In response to the prosecutor's objection, the trial judge stated:

I will sustain your objection. What counsel was reading from here; a detective interviews a lot of people and a detective sits down at a typewriter and types up a report.

What counsel is reading is not a statement of the witness, Mr. Robinson, but the resume prepared by the detective of this witness's interview, and, perhaps, other interviews. I don't know what appears on there.

Subsequently, the trial judge stated:

This is not [Robinson's] work product, it is a statement based on something else.

Let me illustrate that for the jury. If you say something to me and I later on this afternoon, if I wrote down what you said to me and many people said to me and I combined it or consolidated it, it would be grossly unfair to have somebody cross examine you on what I have written down.

During the cross-examination of another Commonwealth witness, William Thomas, the following occurred:

[DEFENSE COUNSEL]: Can I see the witness' statement in the ...


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