NO. 480 January Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Pennsylvania, May Term, 1978, Nos. 0548 to 0551.
Flora L. Becker, Philadelphia, Court-appointed, for appellant.
Robert B. Lawler, Chief, Appeals Div., Mark Gurevitz, Philadelphia, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., files a dissenting opinion. McDermott, J., files a dissenting opinion in which Hutchinson, J., joins.
This is a direct appeal*fn1 from the judgment of sentence, following appellant's conviction by a jury of voluntary manslaughter and possession of an instrument of crime, but acquittal of murder.
Appellant was charged in the shooting death of Richard Hilton, occurring in a Philadelphia bar. Conflicting evidence was offered as to whether the gun was fired during the course of a struggle or whether appellant, having overpowered
Hilton, stood over him and shot him three times. Appellant testified in his own behalf, maintaining that the shooting was in self-defense. As the only witness to provide exculpatory testimony, he testified that Hilton put a gun to his shoulder, whereupon he grabbed Hilton, disarmed him, and, then noticed a drug dealer with whom he had been negotiating during the course of the evening, standing behind Hilton with a gun. Thinking the dealer had fired at him, appellant fired Hilton's gun once, striking Hilton. Appellant, firing the gun over his own shoulder because he heard two additional shots fired at him, ran from the scene. Hilton was hit three times and died from these wounds.
Following appellant's conviction and the denial of post-verdict motions, he was sentenced to a term of five to ten years imprisonment. This appeal followed.
Appellant contends that a reference by the prosecutor, in his cross-examination of appellant, to appellant's silence before trial constitutes reversible error warranting the grant of a new trial. We agree.
After appellant stated, on cross-examination, that he saw the drug dealer shooting at him, the prosecutor asked: "Did you ever tell the police that somebody was shooting at you?" Appellant had not, at any time, given a statement to the police. This in-court testimony was the first occasion on which appellant offered an exculpatory version of the shooting. Before appellant answered, defense counsel objected to the question and, at sidebar, moved for a mistrial. The trial judge sustained the objection but denied the motion for mistrial, giving instead cautionary instructions to the jury sua sponte.*fn2 During the course of the trial, there were no further prosecutorial references to appellant's silence.
The Commonwealth contends that the cautionary instruction, as evidenced by the verdict itself, was effective, rendering any error harmless. That is, the Commonwealth argues that the jury, by returning a verdict of voluntary manslaughter, found appellant's assertion of self-defense credible though unreasonable, and rejected the Commonwealth's charge of premeditated, intentional killing, returning a ...