Nos. 305 and 351, January Term, 1978, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, July Term, 1977 at Nos. 650-52.
John Paul Curran, Philadelphia, for appellant.
Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Division, Victor M. Fortuno, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion. Nix, J., filed a dissenting opinion.
After a 1977 jury trial in Philadelphia, appellant, Daniel Brown, was convicted of murder of the third degree and
possession of an instrument of crime. Appellant's post-verdict motions were denied, and he filed this appeal.*fn1 We affirm.
The trial evidence discloses that on the evening of July 8, 1977, appellant's sister, Trudy Brown, and a neighbor, Veronica Jackson, became involved in a violent argument, causing a crowd to gather in front of appellant's home. A policewoman arrived, and the fight was broken up with the help of neighbors. Ms. Brown was forcibly removed to her home, screaming. Within minutes Ms. Brown ran from the house brandishing a knife and stabbed Veronica Jackson's mother, Mrs. Rebecca Jackson, as she sat with friends on a stoop directly across the street from appellant's home. Once again, the police arrived, and Ms. Brown was again forcibly removed to her home where she continued screaming and "acting like a wild woman."
Shortly thereafter, appellant told the police to leave since, in his view, the situation had calmed sufficiently. After the police departed, appellant's friend, James Hayes, arrived. Hayes warned that if the Jacksons' dispute with the Browns could not be settled, they would "shoot it out." Hayes then entered the appellant's home with the briefcase which he had been carrying. Immediately thereafter, appellant ran from the house and fired four shots from a .38 caliber revolver into the nearby crowd. Two of the bullets struck nineteen year old Sharon Sampson in the back and killed her.
The Commonwealth sought to prove at trial that appellant told the police to leave so that he could carry out his plan to shoot the Jacksons and their neighbors as they stood on the stoop and street in front of his home. Two of the shots fired into the crowd struck the decedent instead.
The defense contended that the crowd outside appellant's home had grown violent, and that after several visits, the police refused protection for the Brown family. Thus, appellant,
in an effort to protect his home and family, shot over the crowd and accidentally hit decedent.
Appellant first contends that he was prejudiced by prosecutorial misconduct. We disagree.
Appellant argues that the Commonwealth presented materially different versions of the Sampson shooting at the suppression hearing and at trial. Since this claim was not raised at trial, it has been waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
Appellant next asserts that the prosecutor concealed the discovery of three spent .25 caliber casings near the scene of the shooting. He argues that this evidence would have corroborated his testimony that he shot over the crowd only after he had heard shots fired at his home. The record, however, reveals no such concealment. Quite to the contrary, the discovery of the cartridges was disclosed to appellant both before and during trial.
Appellant further claims that he was prejudiced when the prosecutor briefly cross-examined his sister, Trudy Brown, regarding her use of drugs on the night of the shooting. A police officer testified that Ms. Brown appeared to have been drinking that night. Moreover, on cross-examination, Ms. Brown admitted that she had been drinking earlier in the evening. Several witnesses also testified that Ms. Brown's behavior that night had been extremely irrational and violent. During her direct trial testimony, Ms. Brown attempted to corroborate her brother's version of the shooting, describing in detail how the crowd "attacked" her home. The prosecutor sought to determine if Ms. Brown was inebriated or drugged when she made these observations. The trial court did not abuse its discretion in ruling that there was ample evidentiary support for the prosecutor's questions. See generally McCormick, Evidence at 49, § 22 (Cleary ed. 1972).
Appellant next claims that defense witness James Hayes was improperly confronted on cross-examination with a prior statement inconsistent with his trial testimony. During his direct examination, Hayes testified that on the night of the shooting, an unidentified individual pointed a gun at him while he was attempting to mediate the dispute outside the Brown home. The prosecutor cross-examined Hayes with the statement he made immediately after the shooting that he had seen no one with a gun. This use of a prior inconsistent statement was well within the bounds of appropriate cross-examination. Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977).
Finally, appellant contends that in her closing argument the prosecutor improperly described the Sampson shooting as an "execution" and a "slaughter."*fn2 In evaluating similar misconduct claims, we have held that the allegedly improper comments must be read in their full context, including the defense closing. We may thus determine if the comments were made in fair response to defense argument. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); ABA Project on the Standards for Criminal Justice, Standards Relating to the Prosecution Function, § 5.8 (Approved Draft, March 1971) (commentary) ("[A] prosecutor may be justified in making a reply to an argument by defense counsel which may not have been proper if made without provocation.")*fn3
The defense argued below that because the police would not permanently calm the "mob" outside appellant's home, he was compelled to shoot over the crowd to protect his family and property and that Ms. Sampson was hit accidentally. During his closing, defense counsel repeatedly expressed personal opinions, made arguments not supported by the evidence, and indulged in appeals to sympathy, in an effort to belittle the Commonwealth's contrary theory that the killing was intentional.*fn4 Such tactics are improper. ABA Project on the Standards for Criminal Justice, Standards Relating to the Defense Function, §§ 7.8, 7.9 (Approved Draft, March 1971). in response, the prosecutor discussed the evidence which revealed that appellant told the police to leave his home so he would be free to implement his plan to shoot those persons involved in the dispute. The discussion included the following comments:
You heard from officers' testimony that the police came multiple times to the corner of Newkirk and Master, to Newkirk Street, to 2814 West Master. Now what they were told? They were told that they weren't needed. They were told that they weren't called. Who told them this?
The defendant told them this. Now, I ask you in the use of your common sense and your logic, the police in Philadelphia go four times, two times, three times to a street to ...