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decided: September 15, 1983.


No. 81-3-483, Appeal from Judgments of Sentence of Court of Common Pleas of Philadelphia, Criminal Trial Division, Imposed at Information Nos. 131, 134, 135 and 136, July Session 1976


Norris E. Gelman, Philadelphia (court-appointed), for appellant.

Robert B. Lawler, Steven Cooperstein, Chief, Appeals Div., Asst. Dist. Attys., Marion E. MacIntyre, William A. Behe, Deputy Attys. Gen., for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.

Author: Roberts

[ 502 Pa. Page 97]


The present appeal arises out of appellant's second trial on charges of murder (two counts), conspiracy, and aggravated assault. Appellant, Mack Truesdale, was charged in connection with a shooting episode which occurred on October 17, 1975, as a result of a dispute over the sale of narcotics. As in the first trial, the jury found appellant guilty of two counts of murder of the first degree, and returned the death penalty on both counts.*fn1 The jury also found appellant guilty of conspiracy and aggravated assault.*fn2 Sentences of death were imposed on the verdicts of guilty of murder of the first degree, a sentence of five to ten years' imprisonment was imposed on the conspiracy verdict and a sentence of eleven and one-half to twenty-three months' imprisonment was imposed on the verdict of aggravated assault. All sentences were ordered to run consecutively.

Appellant raises several allegations of trial error in support of his request for a new trial.*fn3 He first argues that the trial court impermissibly restricted his right of confrontation when the court curtailed his cross-examination of

[ 502 Pa. Page 98]

George Jackson, the key Commonwealth witness and the victim of the aggravated assault. He contends that he should have been permitted to pursue questions regarding Jackson's probationary status at the time of the offense as a means of impeaching Jackson's credibility. We agree with the trial court's holding that, assuming the court erred in sustaining the Commonwealth's objection, the error was harmless. See Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981). The trial court correctly summarized the record when it stated:

"Defendant was able to fully explore Mr. Jackson's possible motive in testifying by establishing that Mr. Jackson was never arrested for or charged with the crimes of Possession of Controlled Substances or Possession of a Firearm on the day of the incident or thereafter, despite the fact that the police found drugs in Mr. Jackson's home, and that Mr. Jackson admitted to those crimes (N.T. 9/24/80, pp. 148-150). In addition, defense counsel fully explored the question of what, if any, protection and money Mr. Jackson received from the District Attorney's Office for his testimony (N.T. 9/24/80, pp. 229-234). Hence, this Court's failure to permit defense counsel to explore the issue of Mr. Jackson's possible bias by means of questioning his probationary status was harmless in light of the other vigorous attacks made on Mr. Jackson's interests in the case."

Trial court opinion at 4.*fn4

Appellant next argues that the trial court erred in permitting witness Jackson and a detective to testify that

[ 502 Pa. Page 99]

Jackson had identified a photograph of appellant shown to him by police several hours after the offense. This claim does not present a basis for relief. The testimony made it clear that the photograph was shown to Jackson after Jackson had asked to see a photograph of "Lieutenant Mack" and after Jackson had told police at the crime scene that "Mack shot me! Mack shot me!" As the trial court concluded, there was no evidence that should have reasonably suggested to the jury that the photograph was obtained as a result of prior criminal activity on the part of appellant. See generally Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972) ("the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity"). The photograph was not admitted into evidence or shown to the jury. Nor was the photograph described or any reference made to the photograph as a "mug shot" or as having been obtained from a police file. See Commonwealth v. Carlos, 462 Pa. 262, 341 A.2d 71 (1975). See also Commonwealth v. Povish, 479 Pa. 179, 188, 387 A.2d 1282, 1287 (1978).

Appellant's challenge to the Commonwealth's introduction into evidence of black and white photographs of the victims and the crime scene must also fail. As a review of the photographs demonstrates that the photographs had probative value and were not inflammatory, the trial court cannot be deemed to have abused its discretion in admitting the challenged photographs, nor can appellant's counsel be deemed ineffective for having failed to request a cautionary instruction as to the photographs' evidentiary value. See Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977); Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974).*fn5

[ 502 Pa. Page 100]

In addition to his allegations of trial error, appellant contends, as he did both at the sentencing stage and on post-trial motions, that the 1978 death penalty statute was improperly applied to his retrial, both because the Legislature did not intend the 1978 statute to apply to offenses committed prior to its effective date, and because if there had been no reversible error at appellant's 1977 trial, the applicable law, Commonwealth v. Moody, supra at note 1 (ruling the Act of 1974 unconstitutional), would have required that a sentence of life imprisonment be imposed on the appeal from his first conviction. Appellant relies upon this Court's decision in Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981), which held that the 1978 death penalty statute could not properly be applied to a defendant's retrial for an offense which was committed prior to the enactment of the 1978 statute.

The Commonwealth acknowledges that appellant's case is legally indistinguishable from Story but urges that the death sentences be affirmed on the ground that Story was erroneously decided. The Commonwealth's request that Story be reconsidered must be rejected, for principles of stare decisis and fundamental fairness, which are of paramount importance in the review of death sentences, manifestly require that the same interpretation of the 1978 death penalty statute be applied in our review of appellant's case as was applied in Story. Accordingly, the sentences of death imposed by the court of common pleas must be vacated and life sentences imposed, to be served consecutively on the two counts of murder of the first degree.

The judgments of sentence of death are vacated and consecutive sentences of life imprisonment imposed. The sentences imposed on the verdicts of conspiracy and aggravated assault are affirmed, and are to run consecutive to the two consecutive sentences of life imprisonment.

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