No. 32 E.D. Appeal Docket, 1982, Appeal from the Judgment of Death Sentence of the Philadelphia Court of Common Pleas November Term, 1980, Nos. 970 & 971.
L. Carter Anderson, Philadelphia (court-appointed), for appellant.
Robert B. Lawler, Jane Greenspan, Asst. Dist. Attys., Marion E. MacIntyre, Deputy Atty. Gen., for appellee.
Flaherty, Justice. Larsen, J., filed a dissenting opinion. Nix, C.j., did not participate in the consideration or decision of this case.
In a trial by jury in the Court of Common Pleas of Philadelphia County, the appellant, Leslie C. Beasley, was found guilty of murder of the first degree and possession of an instrument of crime. In connection with the murder conviction, appellant was sentenced to death, and for the possession offense he was sentenced to 11 1/2 to 23 months imprisonment. The instant direct appeal ensued.
made of the reason for appellant's having been pursued by police on that date. During cross-examination of the detective who found the shotgun, defense counsel intentionally elicited, for the first time in the trial, the fact that an additional weapon, the revolver, was found on the roof with the shotgun. No mention was made, however, of the fact that the revolver had been used to commit a crime. Cross-examination proceeded in a manner directed at showing the improbability of appellant having been able to throw two weapons onto the roof, from a reclining position on the ground several feet from the cinderblock wall. In pursuing this line of questioning, defense counsel's strategy was to show that appellant threw his shirt onto the roof in an effort to disassociate himself from a quantity of marijuana which was later discovered by detectives to have been in the shirt pocket, and, thus, to show that the shirt hit the roof, by mere coincidence, near two weapons that had been placed there at a previous time by some other person.
To rebut the defense's theory as to the manner in which the weapons came to be upon the roof, the prosecution introduced testimony that the revolver recovered from the roof was the same one that appellant had been observed to possess only minutes prior to his apprehension. Also, several shotgun shells found in the van from which appellant fled on July 16, 1980 were admitted into evidence, and these were positively identified as having been discharged from the shotgun in question.*fn1 The effect of this rebuttal evidence was to imply that the weapons recovered from the roof had been thrown there by appellant.
At no time during the guilt determination phase of trial was evidence introduced that appellant committed a shooting on July 16, 1980. Appellant contends, however, that the jury would necessarily have surmised such criminal
involvement, based upon the fact that appellant was pursued and apprehended on that date, and the fact that appellant was shown to have been in possession of a revolver. It is well settled that unrelated criminal conduct of an accused is generally inadmissible to prove his commission of the crime for which he is being tried. Commonwealth v. Styles, 494 Pa. 524, 527, 431 A.2d 978, 980 (1981). Nothing in the record, however, indicates that appellant was pursued on July 16, 1980 as a result of having committed a crime on that date, and the revolver proven to have been in appellant's possession was not shown to have been used in the commission of any crime.
Even assuming, arguendo, that testimony as to appellant's arrest on July 16, 1980 raised some suggestion of criminal activity unrelated to the Singleton homicide, there is no merit to the contention that the shotgun, and all testimony relating to July 16, 1980, should have been suppressed. The evidentiary value of showing that appellant was, three months after the Singleton shooting, in possession of the murder weapon greatly outweighed any possible prejudice to the defense. See Commonwealth v. Travaglia, 502 Pa. 474, 492-493, 467 A.2d 288, 297 (1983) (exceptions to general rule of inadmissibility of evidence of other crimes). Evidence of the shotgun, and of the events of July 16, 1980 linking appellant to that weapon, served to identify appellant as the perpetrator of the murder for which he was being tried, and supported the testimony of two eyewitnesses who indicated that appellant committed the Singleton murder.*fn2
Further, appellant should not be heard to complain of the jury's being informed of the revolver, for it was the defense which first elicited, during cross-examination of a detective, the fact that the revolver existed, as well as the fact that the revolver was found near the shotgun. See Commonwealth v. Sisco, 484 Pa. 85, 88, 398 A.2d 955, 957 (1979) (no error where defense introduces the allegedly objectionable
evidence first); Commonwealth v. Cain, 471 Pa. 140, 156 n. 11, 369 A.2d 1234, 1242 n. 11 (1977) (Opinion in Support of Affirmance); Commonwealth v. Alston, 461 Pa. 664, 667, 337 A.2d 597, 598 (1975); Commonwealth v. Bell, 417 Pa. 291, 294, 208 A.2d 465, 467 (1965). Once the defense had elicited testimony regarding the revolver to advance its theory of the case, that someone other than appellant placed weapons on the roof, the prosecution was not required to refrain from rebutting that theory, and, hence, was entitled to show that the weapons recovered from the roof were ones that appellant had possessed shortly before his arrest. See Commonwealth v. Brown, 489 Pa. 285, 302 n. 6, 414 A.2d 70, 78 n. 6 (1980); Commonwealth v. Clark, 454 Pa. 329, 336-337, 311 A.2d 910, 913-914 (1973). Thus, by introducing testimony as to the existence of a revolver upon the roof, the defense opened the door for the prosecution to rebut the inference thereby created.
Appellant's next claim of error is that the shotgun used in the Singleton homicide was transported into the courtroom in a box which the property custodian had labeled, in what was claimed by defense counsel to have been one-inch high letters, "Police shooting, homicide of police officer." The box was placed on a table allegedly six feet from the nearest juror, but as soon as the label was discreetly brought by defense counsel to the attention of the prosecutor it was immediately covered.
During a recess, defense counsel moved for a mistrial,*fn3 whereupon the trial court examined the box and determined that its label was not ...