No. 1434 Philadelphia, 1982, Appeal From Judgment of Sentence, Court of Common Pleas, Criminal Division, Philadelphia County, No. 2335, 34, 33 April, 1981
Joel S. Moldovsky, Philadelphia, for appellant.
Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cavanaugh, McEwen and Cirillo, JJ.
[ 327 Pa. Super. Page 572]
Appellant, Walter Floyd, was convicted by a jury of first degree murder in the shooting death of Conway Ennis. He was given life imprisonment and a sentence of eleven and one-half to twenty-three months on a weapons offense. The conviction took place just two weeks short of two years after the homicide; the Commonwealth contending that Floyd avoided arrest for a year and a half before surrendering himself. Ennis was shot during the early morning hours while engaged in a card game in the basement of a house. It was the Commonwealth's contention that Floyd came to the house where a social gathering was taking place and shot Ennis when he was rebuffed in his efforts to join the card game. Crucial to the Commonwealth's case was evidence from Michael Alexander, including a written statement made by him to the police and evidence of a subsequent photo identification of appellant made by him.
Appellant's first contention on appeal centers about the admissibility of the Alexander photo identification evidence. We conclude that it was error to permit homicide detective George Harris to testify that Alexander had picked out Floyd as the perpetrator through the photo identification.
In order to assess the Harris testimony, we must first examine the developments during the course of the direct examination of witness Alexander. Alexander, called by the Commonwealth, stated that he was at a party on September 15, 1979 at 5150 Wakefield Street and that between 3:00 and 3:30 A.M., the deceased was shot. When asked if he saw the person who shot him, he replied "[n]ot really, no" and, thereafter offered that he had given a statement. Following an objection to this, there was a side bar conference wherein the assistant district attorney advised the court that he was seeking to lay a foundation as to "prior recollection recorded." Resuming his testimony, Alexander stated that he spoke with police the morning following the
[ 327 Pa. Super. Page 573]
shooting. Alexander related that the story he gave the police was "supposedly right." Defense counsel asked if the district attorney was pleading surprise and the reply was that he was not, rather, he was trying to "refresh the recollection." The statement was marked as an exhibit and it was established that the witness had signed his name at the bottom of each of the six pages. The witness perused the statement and replied "yes" when asked if the statement helped "bring back to you the events leading up to the shooting of Conway Ennis." He testified that he was playing cards with Ennis; that it was dark, and somebody came up and wanted to play cards; that Ennis didn't want the person to play and that there was a shooting and the shooter ran away. As the testimony proceeded, the witness was again referred to his statement to "refresh your recollection." Later, the witness read from the statement his description of the person who approached while he was playing cards with Ennis. He described him as an "unknown man" and gave his physical characteristics, which apparently resembled those of defendant. The district attorney then proposed to read pages 1, 2, 3, 5 and 6 of the statement into the record as "prior recollection" recorded. With the court's permission, after certain portions were deleted, the statement was read to the jury. In the statement, Alexander described the shooting in some detail but did not identify the shooter although he stated that he would be able to identify him if he saw him again. Finally, the witness stated that he could not identify the person who shot Conway Ennis.
We have detailed this direct examination in order to establish:
1. Alexander did not identify defendant in court.
2. Alexander did not identify defendant in his written statement, but therein stated that he could identify the ...