Appeal from the Order entered by the Superior Court of Pennsylvania on June 4, 1986, at No. 540 Pittsburgh, 1985 Affirming the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division on April 22, 1985, at No. CC8205088. Pa. Superior Ct. , 513 A.2d 1077 (1986)
David S. Shrager, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Sean Kevin Code, Asst. Dist. Atty., Pittsburgh, for appellee.
Nix, C.j., and Larsen, Flaherty, Zappala, Papadakos and Stout, JJ. McDermott, J., did not participate in the consideration or decision of this case.
Appellant originally pled guilty to homicide and was convicted of murder in the third degree. One week later he was permitted to withdraw his guilty plea and then proceeded to trial by a jury which found him guilty of voluntary manslaughter in the death of William Carter.*fn1 Appellant raises three issues for our review in his demand for a new trial. First, on cross-examination of the Appellant, was it prejudicial to allow the prosecution to refer to police reports and their contents for the purposes of contradicting Appellant's testimony that he and the victim had become bitter enemies by the time of the killing? Second, was it permissible to allow the prosecution to cross-examine a witness in order to establish that the Appellant had been suspended from school for insubordination and thereby introduce evidence of a bad act? Finally, did the prosecution engage in misconduct during its closing argument by rephrasing Appellant's words on the witness stand?
At the time of the homicide, the Appellant and the victim were eighteen and twenty years old, respectively. Their previous relationship indicated friendship as part of a group which often congregated in a boisterous manner and provoked neighbors into calling the police who made out several reports listing the names of persons, including the Appellant and the victim, who were found at the scene. No arrests were made in these incidents. They also attended vocational school together. More than one year prior to the killing, however, the Appellant and the victim began having several hostile confrontations, which often included personal
violence, cursing and threats. At one point, the Appellant was a prosecution eyewitness in the victim's juvenile hearing for assaulting a neighbor. On another occasion, the Appellant and two witnesses told the director of their school that the victim had beaten him, thereby causing the temporary suspension of the victim from school despite his denials.
The killing itself followed one of these confrontations involving threats and insults. The relevant facts are that in the early morning, the Appellant, while walking home with a friend, Richard Medved, was confronted by the victim in an alley way. The victim had been drinking beer and talking with one Pamela Ohler for some time prior to the arrival of the Appellant. The victim called out derogatory names to the Appellant (T.T. I, pp. 109-110). The Appellant continued walking until he reached his house where he and Medved sat at a distance of ten to fifteen feet from the victim. Joseph Minyon, a mutual friend, then joined the Appellant. At that point, the Appellant went into his house and returned with a rifle (T.T. Vol. I, p. 114). Medved then told the Appellant to take the gun back into the house. Minyon and Medved testified at trial that they had their backs turned in a direction away from the scene when they heard the victim yell to the Appellant and then heard a shot. Pamela Ohler also testified that she heard Appellant cry out to the victim, and that she and the victim stood up to see the Appellant aiming at them. She maintained that the victim walked out into the alley towards the Appellant who then shot him to death. The Appellant testified that he intended only to scare his opponent, but that when the victim came towards him, he shot in self-defense and could not retreat because a car blocked his path.
Appellant entered a plea of self-defense on those facts. Also crucial to this defense was his argument that by the time of the killing, he had become terrified of the victim because of their past hostile encounters. As the object of a systematic policy of harassment and beatings by the victim, he sought to demonstrate a terrorized state of mind which
would buttress his plea further and gain the understanding of the jury for his act of killing by showing that he reasonably believed that his life was in danger. Part of the proof of that accumulated fear was Appellant's direct testimony that he had broken off all relationships with the victim as early as January, 1981, long before the killing on June 15, 1982. He testified that because of fear he no longer consorted with the victim in the interim between these two dates. Even during this period, nevertheless, the victim continued to threaten him and thereby add to his sense of intimidation. In short, by the time of the homicide, he reasonably believed that he was going to be harmed by the victim. This was his portrayal of his state of mind when he was confronted by the advancing victim on the fateful night of the crime.
Appellant cites as the first error the attempted use at trial of two police reports and their contents, dated April 28 and May 27, 1981, which he alleges constituted unfair prejudice against him in the eyes of the jury. Explicitly referred to at trial as "police reports," they revealed that on those dates, the police had responded to citizen complaints regarding rowdy behavior by youths who often congregated in the alley. The reports further listed the names of the Appellant and the victim as among those rousted by the authorities, although on the witness stand the Appellant specifically denied that he had been present during those incidents. Of special significance was that one of the reports read to the jury made reference to the fact that a citizen, Joseph Gobel, accused one member of the group, Joseph Minyon, of threatening his eight-year-old son. As noted in the testimony quoted below, the court properly cautioned the jury regarding portions of the report of April 28.
Selected portions of this testimony and sidebar conferences (T.T. II, p. 81 ff.) are as follows:
Q. Mr. Lawson, I want to take a few minutes to go back over your testimony about your prior relationship with Billy Carter that you claim existed prior to the night of the shooting.
Now, you have given a version to the jury, and correct me if I'm wrong, but basically you were free from fault in this relationship and that Billy was the one harassing you all the time. Is that a fair statement?
Q. As I understand your testimony, this relationship that you had with Billy prior to the night of the shooting was that everything that happened was his fault and that you were free from fault.
Q. And that you never did anything to hurt Billy or provoke Billy and this was all pretty much of a one-sided thing.
Q. Now, you told the jury, if I understand, that you and Billy were at one time good friends, correct?
Q. You used to pal around together.
Q. You used to hang around in Pope Alley together as a matter of fact.
Q. And isn't it a fact that you and Billy got into some trouble together on a couple occasions?
You weren't an angel, were you?
Q. And as a matter of fact the neighbors didn't complain about Billy, but about activities that you and Billy engaged in.
THE COURT: Objection sustained.
Q. Mr. Lawson when is the first time that you alleged that you had this falling ...