No. 2830 Philadelphia, 1982, Appeal from the Judgment of Sentence of September 8, 1982, Court of Common Pleas, Philadelphia County, Criminal Division at No. 81-05-1002-1005.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Montemuro, Johnson and Hoffman, JJ. Hoffman, J., files a dissenting opinion.
[ 339 Pa. Super. Page 140]
On April 3, 1981, while standing on the corner of 52nd and Woodland Streets in Philadelphia, Stanley Williams was shot in the abdomen in an unprovoked attack. Even after the victim fell to the ground wounded, his assailant continued to fire at him, but fortunately missing, as the victim crawled away. Following the attack, the victim was taken to Misericordia Hospital. There, although in critical condition, the victim gave a statement identifying his attacker as appellant, Alex Sherman, a man from the same neighborhood as the victim.
Williams survived the shooting and testified against appellant at the preliminary hearing, identifying appellant as the man who shot him. However, prior to the trial, Williams received several threats against his life, and, apparently because of these threats, Williams declined to positively identify appellant at trial. Whereupon, the Commonwealth introduced evidence of Williams' testimony taken at the preliminary hearing along with similar statements made by the victim while in the hospital, and later to the district attorney just prior to trial.
Appellant now argues that the trial court erred in admitting as substantive evidence the victim's three pre-trial statements identifying appellant as the assailant. It is appellant's assertion that this was an improper use of a witness' prior inconsistent statements. We reject appellant's characterization of the victim's trial testimony as being inconsistent with that witness' prior statements.
At the preliminary hearing, Williams positively identified appellant as the assailant and was able to describe the gun
[ 339 Pa. Super. Page 141]
used in the shooting. Also, when asked by defense counsel on cross-examination whether "there was anyone else there" when he was shot, Williams replied that there was another person present. However, when Williams was asked to identify this other person, the Commonwealth objected and, for reasons not apparent from the record, this objection was sustained.
Subsequently, when Williams took the stand at trial, he testified to many of the same facts that he had at the preliminary hearing. Specifically, Williams reiterated the date and place of the shooting and the fact of his seeing appellant standing two feet away from him just before the shooting. However, when Williams was asked to tell who shot him, Williams asserted that he did not recall, that he did not remember seeing the gun, and that there was another, unidentified man standing next to appellant at that time. To quote from Williams' testimony on direct examination, Williams stated:
Q. (District Attorney): Okay. And who shot you?
A. (Williams): All I seen was Alex standing there, that's all I can say.
Q. Did you see him with a gun?
Q. You can't recall. Now, Alex was the only person standing ...