No. 415 Pittsburgh 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division of Allegheny County, April Term, 1980, No. CC7903802A
John P. Joyce, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, submitted a brief on behalf of Commonwealth, appellee.
Price,*fn* Brosky and Montemuro, JJ.
[ 313 Pa. Super. Page 418]
Following a jury trial, appellant, Stanley Dennis, was found guilty of aggravated assault*fn1 and sentenced to a term of not less than two nor more than five years imprisonment. On appeal from the order of the Court of Common Pleas of Allegheny County denying post-conviction relief, appellant alleges essentially three grounds of error. He contends that: (1) he was denied a fair trial because the court below refused to permit him to introduce evidence of the acquittal of the principal defense witness on charges stemming from the same incident; (2) the trial court erred in admitting three photographs depicting the victim's injuries and the testimony of a medical records librarian as to an operation performed on the victim; and (3) the prosecuting attorney engaged in misconduct at trial which warranted
[ 313 Pa. Super. Page 419]
the declaration of a mistrial. We find these contentions to be without merit, and affirm.
At trial, the alleged victim, Doyle Rose, Jr. testified that on April 29, 1979, he met his fiance, Elaine White, at "Big Daddy's" bar on Pittsburgh's Northside. While drinking at the bar, Mr. Rose heard a disturbance outside. When he went outside to investigate, he discovered a friend, Donald Brown, arguing with Robert Dennis, appellant's brother. Mr. Rose spoke with Mr. Brown as appellant and Robert Dennis looked on. Mr. Rose testified that he knew neither of the Dennis brothers, and that he directed no hostile comment or gesture to either. According to Mr. Rose, when the conversation ended he turned to re-enter the bar, whereupon he was suddenly punched in the face by appellant. Mr. Rose and appellant then engaged in an exchange of blows for approximately five minutes, until they were separated by an onlooker. Mr. Rose testified that after the fighting had stopped, Robert Dennis punched him in the head, causing him to fall to the ground, and that as he lay on the ground, Robert Dennis and appellant kicked him repeatedly in the head, rendering him semi-conscious. Mr. Rose required surgery for injuries sustained during the fight.
Elaine White testified that when she left the bar, the fight was already in progress. According to Ms. White, the men were separated, and then Mr. Rose was attacked by the Dennis brothers and kicked in the head by Robert Dennis.
Robert Dennis, who was acquitted at an earlier trial of a charge of aggravated assault arising from the same incident, testified that he was attacked by Mr. Rose after Mr. Rose had initiated a fight with no provocation from either brother and had knocked appellant unconscious.
Appellant's contention that the trial court erred in refusing to permit the jury to hear evidence of Robert Dennis's acquittal is largely premised on the mistaken notion that "Robert Dennis was acquitted of the charges against him and could not as a matter of law be ...