No. 152 E.D. Appeal Docket 1984. Discretionary Appeal From the July 2, 1984 Order of the Superior Court, at Philadelphia, 1982, No. 1434, Denying the Commonwealth's Application for Panel Reconsideration or En Banc Reargument as to the April 19, 1984 Superior Court Panel Decision which Reversed the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section on Nos. 2533-35, April Sessions, 1981, and Remanded for a New Trial.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Larsen and Hutchinson, JJ., filed concurring opinions. McDermott and Papadakos, JJ., concurred in the result.
Appellee, Walter Floyd, was convicted in the Court of Common Pleas of Philadelphia of murder of the first degree and possession of an instrument of crime. He was sentenced to imprisonment for life for murder and eleven and one-half to twenty-three months for possession of an instrument of crime, the sentences to run consecutively. The
Superior Court, 327 Pa. Super. 569, 476 A.2d 414, reversed and remanded for a new trial. We granted the Commonwealth's Petition for Allowance of Appeal.
Appellee was charged in connection with the shooting death of Conway Ennis, which occurred on September 15, 1979 in the basement of a Philadelphia bar. Ennis was allegedly shot after refusing to allow Appellee to join a card game. Several witnesses testified that they heard the shooting, although they did not see it. They saw Appellee flee the scene immediately afterward. One of them said that Appellee had a gun in his belt and that an attempt was made to restrain him. These witnesses were able to identify Appellee in court, although it appears from the testimony and a statement by the prosecuting attorney that he changed his appearance between the time of the shooting and the time of the trial by removing a mustache, a goatee, and sideburns.
The only eyewitness to the shooting was Michael Alexander, a participant in the card game. Alexander testified that he saw the shooting. The prosecutor asked what happened, and the following testimony was given:
Q. Did you see the person that shot him?
Q. What happened that led up to the shooting?
A. Well, I can't remember the whole statement. R. 14a.
Alexander then testified that he gave a statement to the police the next morning, that events were fresh in his mind at the time, and that the statement was "supposedly right." After identifying and being referred to the statement, Alexander described the incident. Parts of the statement were read into evidence. The statement contained a description of the perpetrator that resembled Appellee. The prosecutor unsuccessfully attempted to elicit an in-court identification from Alexander. The testimony was as follows:
Q. The person who shot Conway Ennis, had you seen him before that night?
Q. Had you seen him earlier that night?
A. I don't know. I don't know. You see, you bring this up to me, happened a long time ago, right. I can't tell you who that man was, but I know that Ennis had got shot that night.
Q. Are you saying that you are unable to make an identification of the person who shot Conway Ennis?
MR. SIGAL: Objection, Your Honor.
Q. Why are you unable to make an identification?
A. I can't. I don't know. I can't make distinction. R. 55a.
Alexander then gave the following testimony on cross-examination:
Q. Did you ever identify this defendant before?
Q. And you are saying that's not the man that did ...