No. 141 January Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia, as of August Term 1976, Nos. 1204-1206.
Daniel M. Preminger, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Larsen, J., concurred in the result.
Appellant was convicted in a jury trial of criminal conspiracy, possession of an instrument of crime, and murder of the
first degree in the assassination-style shooting of Andre Washington on September 24, 1974. Appellant was sentenced to death on the murder charge and concurrent sentences of five to ten years on the criminal conspiracy charge and two and one-half to five years on possession of an instrument of crime. The murder sentence was modified to life imprisonment as a result of Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, 438 U.S. 914, 98 S. Ct. 3143, 57 L.Ed.2d 1160 (1978). Appellant filed this direct appeal of the murder conviction with this Court. Appellant was represented by the same counsel (trial counsel) at trial and during post-trial proceedings, but by another counsel on this appeal.
Appellant properly raises two issues for consideration by this Court. The first issue, that the trial court erred in admitting evidence of other crimes committed by the appellant, was properly preserved.*fn1 At issue were several statements made by a key prosecution witness during direct examination, and numerous references to previous criminal activities by the gang of which appellant was a member, including theft of the vehicle in which the victim's body was discovered.
The trial court, after thoroughly reviewing Pennsylvania law on admissibility, correctly concluded that this contention was meritless. That court cited the standard which we enunciated in Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973) that a new trial must be granted only when irrelevant references would deprive the defendant of a fair and impartial trial. Such is not the situation in the instant case.*fn2 Here the witness later clarified his remarks to indicate that the gang leader, not the
appellant, was responsible for the threats on his life and the killings he had mentioned. Even if the jury drew the inference that the defendant had been involved in threatening the witness, "[i]t has been held that it is proper for the Commonwealth to show an attempt by a defendant to intimidate its witnesses." Commonwealth v. Baranyai, 278 Pa. Super.Ct. 83, 89, 419 A.2d 1368, 1371 (1980). In addition, appellant testified to some of the criminal activities of the gang. Further, the instant killing can also be viewed as an event which grew out of previous gang activities. The car was stolen to transport the victim. As the trial court noted: "The instant criminal homicide was inextricably interwoven with a history of gang warfare." Commonwealth v. Johnson, 141 January Term, 1979, slip op. at 19. Testimony of this type is ...