Com. v. Davis

• Decision Date: 14 February 1989
• Citation: 381 Pa.Super. 483,554 A.2d 104
• Parties: COMMONWEALTH of Pennsylvania v. James DAVIS, Appellant.
• Court: Pennsylvania Superior Court

Page 104

554 A.2d 104

381 Pa.Super. 483

COMMONWEALTH of Pennsylvania v. James DAVIS, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 29, 1988.

Filed Feb. 14, 1989.

[381 Pa.Super. 486] Mitchell S. Strutin, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before OLSZEWSKI, KELLY and HESTER, JJ.

KELLY, Judge:

James Davis, appellant, appeals nunc pro tunc from the judgment of sentence imposed following his convictions of first degree murder, conspiracy and possession of an instrument of crime. We affirm.

Appellant has raised four contentions of error for our consideration on this appeal. Primarily, we are concerned with appellant's first contention, i.e. that the trial court erred by denying his motion for a mistrial and admitting into evidence the testimony of a police officer regarding a visibility/identification experiment which was offered to corroborate the testimony of the Commonwealth's principal witness whose testimony regarding her observation of the crime had been impeached by the defense as not credible. Upon our review of the record, the briefs, the applicable authorities and caselaw, we find that this contention, as well as appellant's three other contentions, are without merit. Consequently, we affirm the judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On March 19, 1978, between 9:30 p.m. and 9:45 p.m., appellant and Willie Truesdale ¹ (hereinafter "Truesdale") were engaged in a fight with Melvin Fields on the sidewalk in front of 1904 N. Napa Street, Philadelphia. Appellant and Truesdale punched Fields and knocked him to the ground. After Fields had fallen, appellant and Truesdale ran to the corner of Napa and Berks Streets where they stopped, turned around, and returned to the place where Fields was lying. At that point, they stabbed Fields three times in the chest and then fled the scene together. Fields died a short time later as a result of knife wounds to his heart and lungs.

On March 5, 1984, appellant was arrested and charged with murder, conspiracy and possession of an instrument of crime. On November 9, 1984, a jury, presided over by the Honorable Joseph T. Murphy, found appellant guilty of first degree murder, conspiracy and possession of an instrument of crime. On January 22, 1986, appellant's post-trial motions were denied and he was sentenced to a term of imprisonment for life on his first degree murder conviction and a concurrent term of five to ten years imprisonment on his conspiracy conviction. A notice of appeal was filed and subsequently dismissed on July 14, 1986, without prejudice, for failure to file a brief. On February 26, 1988, an order entered by the Court of Common Pleas of Philadelphia County granted appellant the right to appeal nunc pro tunc. Appellate counsel was appointed and this timely appeal followed.

I. MISTRIAL: VISIBILITY/IDENTIFICATION EXPERIMENT

Appellant first contends that the trial court erred when it denied his request for a mistrial after the court overruled his objection to the Commonwealth's proposed testimony concerning a visibility/identification experiment conducted by Sergeant Michael Ryan and Lieutenant Thomas Grady. Appellant argues that Sergeant Ryan's testimony regarding the visibility/identification experiment was irrelevant and prejudicial, and thus the trial court erred when it denied his motion for a mistrial. We do not agree.

On the first day of trial, Friday, November 2, 1984, the principal Commonwealth witness, Fay Shaw, testified during direct and redirect examination that between 9:30 p.m. and 9:45 p.m. on March 19, 1978, she witnessed appellant and Truesdale stab Melvin Fields in front of 1904 Napa Street from her porch at 3102 Berks Street. She testified that she had known appellant for six or seven years before the incident. She stated that as she was standing at 31st and Berks, she looked across the street and watched appellant and Truesdale punching another man for about five minutes, and that after the man fell down, appellant and Truesdale ran to the end of Napa Street. They stopped at the corner of Napa and Berks Streets and then turned back to where Fields was lying. When they returned to Fields, they bent over him holding a 'shiny object' which looked like a knife and struck him in the chest area about two or three times in an up and down motion. Ms. Shaw was unable to see which of the two, appellant or Truesdale, held the knife. Ms. Shaw stated that after the stabbing, the two men ran away together. Throughout the entire incident, Ms. Shaw was standing on her front porch at 31st and Berks. (N.T. 11/2/84 at 73-80, 120).

Ms. Shaw was questioned extensively by counsel for appellant and counsel for co-defendant Truesdale during cross and re-cross examination about her ability to see the incident, as well as the alleged impairment of her ability to see and to recollect the incident due to her acknowledged consumption of beer and marijuana prior to the incident. Ms. Shaw was questioned specifically about: the weather conditions on the night of the incident; the lighting of the area in which the incident occurred; how many other people were present in the area during and after the incident occurred; whether appellant or Truesdale had a beard, a mustache or sideburns; whether appellant or Truesdale were wearing glasses, hats, sneakers or shoes; whether appellant or Truesdale were wearing coats and, if so, what color were the coats; whether Fields was lying on the street, the pavement or the steps; whether she could see him lying on the pavement; whether it was possible to see the incident from where she stood; whether appellant or Truesdale held the knife; how recently she had seen appellant prior to the incident; how could she tell the assailant was appellant and not another black man; and whether she was positive about what she saw. ² See generally N.T. 11/2/84 at 95-119.

On Monday, November 5, 1984, the second day of trial, the Commonwealth called Police Sergeant Michael Ryan to testify. The defense promptly requested an offer of proof to which the prosecutor responded:

Your Honor, Sergeant Ryan has no real connection with this case other than he was available Saturday night to go out to the scene and to look from 3102 Berks to 1904 Napa, and he will testify that he did that, and he was able to see and distinguish faces from that distance.

(N.T. 11/5/84 at 11). The defense objected stating that the proposed testimony was irrelevant and prejudicial. The trial court overruled the objection and the defense made a motion for a mistrial which was denied. (N.T. 11/5/84 at 11-13).

Police Sergeant Michael Ryan testified that on November 4, 1984, at approximately 1:30 a.m., he accompanied Police Lieutenant Thomas Grady to the crime scene; that he stood on the porch of the house at 3102 Berks while Lieutenant Grady went to an address on Napa Street; that from that distance he was able to see and to distinguish Lieutenant Grady's face; that Lieutenant Grady also stood at the corner of 31st and Napa Streets and that he was able to see and to distinguish Lieutenant Grady's face from that distance. In addition, Sergeant Ryan stated that from 3102 Berks Street, he could see the sidewalk in front of 1904 Napa Street. (N.T. 11/5/84 at 14-16).

Sergeant Ryan was cross-examined by counsel for appellant and counsel for co-defendant Truesdale. The testimony elicited during cross-examination highlighted the differences between Sergeant Ryan and Ms. Shaw. Sergeant Ryan was questioned about whether he had been at the scene of the murder on the night of March 19, 1978; whether he had consumed any alcoholic beverages or marijuana on the night the visibility/identification experiment was conducted; whether he knew about the murder and the trial prior to visiting the scene of the murder; and what his height was. (N.T. 11/5/84 at 17-19).

Initially, we note that a motion for a mistrial is addressed to the discretion of the trial court and will not be reversed absent an abuse of discretion. Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178 (1988). We find no abuse of discretion. We recognize, however, the true essence of appellant's contention is that the trial court abused its discretion by admitting, over objection, the testimony of Sergeant Ryan concerning the visibility/identification experiment. The admissibility of evidence is, likewise, a matter left to the sound discretion of the trial court and may only be reversed on appeal upon a showing that the trial court abused its discretion. Commonwealth v. Osborn, 364 Pa.Super. 505, 516, 528 A.2d 623, 629 (1987). " '[A]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will as shown on the record, discretion is abused.' " Commonwealth v. Grove, 363 Pa.Super. 328, 346, 526 A.2d 369, 378 (1987), quoting Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 102 (1982).

The basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant. Commonwealth v. Potts, 314 Pa.Super. 256, 275, 460 A.2d 1127, 1137 (1983). Though "relevance" has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Potts, supra, 460 A.2d at 1137; see also Commonwealth v. Doe, 316 Pa.Super. 1, 7, 462 A.2d 762, 765 (1983).

The decision whether or not to admit evidence which, though relevant, is merely corroborative of other substantive evidence requires a balancing...