DocketNumber: Appeal, 6
Judges: Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino
Filed Date: 9/19/1973
Status: Precedential
Modified Date: 10/19/2024
Opinion by
James A. Pierce was convicted by a jury in Delaware County of the crimes of murder in the second degree and conspiracy. The convictions stemmed from the
Although, the sufficiency of the evidence is not challenged, the record demonstrates the jury was warranted in finding the following facts which amply support the verdict.
On the night of November 28, 1970, Pierce who was a member of a group known as the “Graveyard Gang” heard that members of another gang were coming to a dance to be conducted at the Euth Bennett Housing Project in Chester. Anticipating trouble, he picked up two rifles at the home of his sister; one a single shot which he gave to a companion, James L. Doehery, and the other a repeating rifle which he kept himself. About 9:30 p.m., Pierce and Doehery saw five boys walking across a field and approaching the Euth Bennett Project. Pierce first fired three shots from his rifle at some street lights and when the “five boys” turned and started to run away from the project, Pierce aimed the gun in their direction and fired “wildly” into the group. One of the group, Emanuel Hughes, age fifteen years, was hit in the abdomen by a bullet and fatally wounded.
Pierce contends several errors occurred at trial which require a retrial.
Initially, it is argued two of the jurors in the case took notes during the tidal and used the notes during the jury’s deliberation. The facts, as they relate to this issue, are these: Subsequent to trial, one of the jurors in the case contacted defense counsel and stated two jurors had taken notes during the trial and brought the notes into the jury room. Counsel had the juror sign an affidavit to this effect and presented the affidavit to the trial court and requested a hearing on the issue. The court refused to hold the hearing.
It is next urged the trial judge erred in refusing a submitted point for charge on the law of alibi. Cf. Commonwealth v. Bonomo, 396 Pa. 222, 151 A. 2d 441 (1959).
The next assignment of error involves an alleged prejudicial remark by the district attorney during the trial. The record shows the following occurred during the questioning of a witness: “Defense Counsel: Do you know if Tony also called the hospital? District Attorney: I object. That is not relevant. The Court: What difference does that malee whether he did or did not? District Attorney: He should have thought of that before he shot him. Defense Counsel: I ask for a Mistrial, Tour Honor. The Court: Overruled. I will grant you an exception.” Although we do not condone such a statement by the prosecuting attorney, we do not deem the incident sufficient to warrant a new trial. The remark was consistent with the evidence which had already been presented and did not add any new evidence to the trial, and was not of the nature to truly inflame or prejudice the jury or to have the unavoidable effect of prejudicing the jury to the extent that they would have a fixed bias in their minds, so they could not objectively weigh the evidence and render a true verdict. See Commonwealth v. Toney, 439 Pa. 173, 266 A. 2d 732 (1970); Commonwealth v. Simon, 432 Pa. 386, 248 A. 2d 289 (1968). Moreover, in his charge the
The last alleged trial error involves the admission of certain opinion testimony by a ballistics expert. These are the pertinent facts.
Following the occurrence, the police, through information received from Pierce, located and seized the rifles which were in the possession of Pierce and Dochery at the time of the shooting. A ballistics expert stated testing disclosed one of these rifles, a single shot .22 caliber rifle, had six lands and six grooves, and that the other, a “Mossburg” automatic .22 caliber rifle had eight lands and eight grooves. [It was undisputed at trial that the rifle in the possession of Pierce at the time involved was the “Mossburg.”] The witness testified, while the bullet recovered from the body of the victim during the autopsy, was a .22 caliber rifle bullet with eight lands and eight grooves, he was not able to testify conclusively that this bullet was fired from the “Mossburg”, because the striae on the bullet had been obliterated. However, he said the bullet was fired from a rifle with eight lands and eight grooves and he was, therefore, certain it was not shot from the single shot rifle with six lands and six grooves. Over objection, the witness was then permitted to say that in his opinion the bullet was fired from the “Mossburg.” The ruling permitting this expression of opinion is urged as error. We are not so persuaded.
From the undisputed evidence, it is clear that only two rifles were present on the scene when Hughes was
Judgment affirmed.
Tlie trial judge refused the point stating he had adequately covered the matter in his charge.
Appellant cites Commonwealth v. Potter, 445 Pa. 284, 285 A. 2d 492 (1971). However, Potter relates to tbe district attorney calling the defendant a liar, thus expressing his opinion on the credibility of the defendant. This is not the factual situation presently under consideration.