No. 973 PHILADELPHIA, 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 1367-1369 October Term, 1980.
John Paul Curran, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, President Judge, and Hester and Lipez, JJ.
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At approximately 2:00 p.m. on November 9, 1977, the body of Edward Hammond was discovered lying face down in a pool of water in a heavily weeded area near 62nd Street and Woodland Avenue, in the City of Philadelphia. The victim was a male, 5'5" in height, weighing 129 lbs., and had received fifty-seven (57) stab wounds to the back, neck and shoulder areas. At approximately 3:30 a.m. on November 9, 1977, prior to the discovery of the victim's body, appellant, who was living with his uncle less than three blocks from the murder scene, woke his uncle and confessed to the killing. Appellant admitted repeatedly stabbing an individual earlier that night. Later during the day after receiving further information which established a killing had in fact occurred, appellant's uncle went to the police and reported what he had been told by appellant. Appellant was subsequently arrested for this crime and charged with murder, voluntary and involuntary manslaughter, and possession of an instrument of crime. Following his first trial, a jury convicted appellant of murder in the first degree and possession of an instrument of crime. Post verdict motions were denied and appellant was sentenced to life imprisonment on the murder conviction and to a concurrent term of two and one-half to five years imprisonment on the weapons offense. The judgments of sentence were appealed to our Supreme Court. The Supreme Court affirmed the possession of an instrument of crime judgment but reversed the murder judgment and granted a new trial for reasons not
[ 324 Pa. Super. Page 461]
relevant to the instant appeal. Commonwealth v. Shain, 493 Pa. 360, 426 A.2d 589 (1981).
On July 14, 1981, appellant was retried before a jury and found guilty of third degree murder. Following denial of his post trial motions for a new trial and arrest of judgment, appellant was sentenced to imprisonment for a term of not less than ten nor more than twenty years, consecutive to any other sentence he was serving. Appellant raises three issues in this appeal.
Appellant first contends that the trial court erred in admitting testimony referring to the victim as "retarded". The testimony of which appellant complains was elicited from the victim's brother-in-law, Joseph Gallagher, and from appellant's uncle, James Morrow. At trial, Gallagher testified:
Q. Okay. What was your brother-in-law's mental condition at that time?
Q. Now I want to -- don't just make a mental diagnosis for the jury. I want you to describe in your own words, as best you can, what you mean when you say that your brother-in-law was retarded?
MR. CURRAN: Your Honor. I'd like my objection noted, please.
THE WITNESS: Well, he could neither read nor write. He had no formal education. He spent eight years from (sic) the State Mental Hospital, upstate New York.
He couldn't count money. Just about all he was capable of doing was small tasks and going to the store.
Q. Would you describe your brother-in-law's physical appearance; how big was he; how much did he weigh -- approximately?
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A. Well, he was about 5'5", 120 pounds, slender build, and real thin arms. He was about the ...