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decided: April 30, 1982.


No. 80-1-73, Appeal from the Judgment of Sentence entered on March 3, 1980, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC7803300A.


John H. Corbett, Jr., Chief, Appellate Division, Asst. Public Defender, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kathryn L. Simpson, Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., concurred in the result.

Author: Nix

[ 498 Pa. Page 35]


This is a direct appeal from the judgment of sentence imposed upon appellant, A. C. Waller, following conviction by the court sitting as the trier of fact, for murder of the third degree.*fn1

Appellant raises two issues in the instant appeal: 1) whether the trial court erred in permitting the Commonwealth to plead surprise and cross-examine its own witness; and 2) whether the evidence was sufficient to sustain appellant's

[ 498 Pa. Page 36]

    conviction for murder of the third degree. For the reasons that follow, we affirm.

The pertinent facts surrounding the incident were as follows. During the late afternoon of May 21, 1978, appellant and one Douglas Yancey were sitting in the front seat of Yancey's car. Suddenly, someone stuck a gun in the window on the passenger's side and shot appellant several times in the leg. This shooting occurred near the Hilltop Bar, located on Centre Avenue in the city of Pittsburgh.

The driver, Douglas Yancey, started the car and proceeded to take appellant to Central Medical Pavilion, a hospital located in downtown Pittsburgh. However, appellant told Yancey that he preferred to go to a different hospital located in the Oakland section of the city.

Yancey initially agreed and began driving in the direction of the second hospital. Upon reflection, Yancey decided to go to Central Medical because, according to him, it was closer. Yancey again changed directions and enroute back towards Central Medical passed the Hilltop Bar. Upon passing this location, Yancey testified that he saw a man in a white coat lying on the sidewalk near the Hilltop Bar. When appellant and Yancey arrived at Central Medical, appellant handed him a gun with the instruction that the weapon was to be given to appellant's brother.

The Commonwealth's theory at trial was that appellant, after turning back in the direction of Central Medical, passed the Hilltop Bar, observed the deceased and shot him. When the police arrived at the scene of the killing, Officer Bernard Hughes found a spent bullet casing, later determined to have been fired from a .25 caliber automatic pistol.

Earlier that same day, appellant was involved in an incident in which he accidentally shot a friend, one James Montgomery, in the leg. Montgomery testified at trial that the gun with which appellant had shot him was a .25 caliber automatic. The bullet which struck Montgomery was retrieved and after examination, it was determined to have been shot from a .25 automatic pistol.

[ 498 Pa. Page 37]

The Commonwealth presented a ballistics expert with the Allegheny Crime Laboratory who testified that the bullets removed from both Montgomery and the deceased were fired from the same .25 caliber automatic pistol. This expert also testified that the spent shell casing found at the scene of the crime was of a type used with a .25 caliber pistol.

Appellant's first assignment of error is whether the trial court committed reversible error with reference to its rulings relating to the testimony of the Commonwealth witness, Douglas Yancey. Appellant contends the court erred when the prosecution pled surprise and was allowed to impeach Mr. Yancey.

In Commonwealth v. Thomas, 459 Pa. 371, 379-380, 329 A.2d 277, 280 (1974) this Court set forth the requirements as to when counsel may be granted the right to cross-examine his or her own witness:

The fundamental rule in this jurisdiction is that 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, 305 A.2d 364 (1973). In recent years this Court has announced several principles for the trial courts to follow in the exercise of this discretion. First, before counsel may cross-examine his own witness on a plea of surprise the testimony given by the witness must be unexpected. Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957):

'Generally, to entitle the party calling the witness to relief from the situation caused by the witness's adverse testimony, it is essential that such party be really surprised by such testimony.' . . . Surprise, in its legal connotation, does not embrace disappointment or a feeling of frustration on the part of the one seeking to have a witness ...

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