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COMMONWEALTH PENNSYLVANIA v. KENNARD LEE WATSON (04/11/80)

filed: April 11, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNARD LEE WATSON, APPELLANT



No. 126 Special Transfer Docket, No. 127 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division/Criminal Section at Numbers 797 and 798, September Term, 1976, at Philadelphia County.

COUNSEL

Robert E. Gabriel, Philadelphia, for appellant.

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

Wieand, Nix and Wekselman, JJ.*fn*

Author: Nix

[ 276 Pa. Super. Page 608]

Appellant, Kennard L. Watson, was convicted after trial by jury of murder of the third degree and possession of instruments of crime generally. The charges arose from the fatal shooting of Willie Lattimore in a South Philadelphia bar on January 2, 1975. This direct appeal follows.

[ 276 Pa. Super. Page 609]

Appellant's first assignment of error is that the attorney for the prosecution unfairly prejudiced appellant's case by suggesting to the jury that decedent was shot in the back although the incontrovertible evidence established that the decedent was not struck in the back by the bullet. Supreme Court decisions have condemned attempts by prosecutors to suggest inferences adverse to the accused which are not reasonably supported by the evidence. Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972).

While a prosecutor, in order to present the Commonwealth's case in the most favorable light, may make fair deductions and suggest to the jury appropriate inferences from the evidence, a society cannot permit its agent to attempt to prejudice the minds of the jury against the accused by making wholly unsupported inferences . . . . (Emphasis in original text; footnote omitted). Commonwealth v. Revty, supra, 448 Pa. at 517, 295 A.2d at 302.

See also, Commonwealth v. Smith, 457 Pa. 638, 644, 326 A.2d 60, 62 (1974) (and cases cited therein).

A review of the instant record satisfies us that this principle of law was not violated in this case. The testimony of Barbara Gayle, an eyewitness, and Dr. Catherman, the pathologist, established that appellant fired at the victim's back. A sudden movement by the victim caused the entry of the projectile in the victim's side. Thus, although appellant is correct in stating that the bullet did not enter the victim's back, there was evidence to support the conclusion that he was shot from behind. Concededly, the attorney for the Commonwealth used the phrase "shot in the back" and that was inaccurate, nonetheless the inference sought to be advanced by the prosecutor's statements was that the victim was shot from behind and that was in accordance with the evidence.

Appellant's second contention is that the trial court erred in refusing to permit defense counsel on cross-examination to elicit the specific addresses (i. e., the street and house number) given to police by two eyewitnesses. At ...


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