Com. v. Fielder

• Decision Date: 20 July 1992
• Citation: 417 Pa.Super. 455,612 A.2d 1028
• Parties: COMMONWEALTH of Pennsylvania v. Anthony FIELDER, Appellant.
• Court: Pennsylvania Superior Court

Page 1028

612 A.2d 1028

417 Pa.Super. 455

COMMONWEALTH of Pennsylvania v. Anthony FIELDER, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 21, 1992.

Filed July 20, 1992.

Bernard L. Siegel, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com.

Before ROWLEY, President Judge, and BECK and HESTER, JJ.

ROWLEY, President Judge:

In this appeal from the judgment of sentence imposed following his conviction of murder in the first degree, Anthony Fielder raises three issues: 1) whether the trial court erred in allowing the Commonwealth to read into the record the prior, and allegedly hearsay, statement of a Commonwealth witness; 2) whether the trial court erred in permitting the Commonwealth to offer, in rebuttal, testimony that allegedly should have been introduced as part of the Commonwealth's case-in-chief; and 3) whether the conduct of the prosecutor was so inflammatory and prejudicial as to deny appellant a fair trial. After reviewing the record and considering the arguments of the parties, we affirm the judgment of sentence.

In his opinion dated July 1, 1991, the Honorable David N. Savitt summarized the facts concerning the homicide as follows:

On Saturday, September 23, 1989 at about 5:00 p.m. the victim, Jack Fauntleroy, was having an argument outside Skip's Bar at 52nd and Market Street [in Philadelphia] with a man named Stefan. Stefan then went into the bar and came out with the defendant Anthony Fielder who began arguing with the victim. After a few minutes Alfonso Goldsmith, a friend of the deceased, intervened on behalf of him and began to argue with the defendant. The argument came to blows and when Goldsmith began to get the better of it the defendant left and went back into Skip's Bar. A few minutes later the defendant emerged from the bar with a .38 caliber handgun and fired it at the fleeing victim hitting him in [sic] once in the leg and once in the back causing his death.

On February 15, 1990, appellant voluntarily surrendered to the police in the offices of Chuck Stone, Senior Editor of the Philadelphia Daily News. On January 8, 1991, a jury found appellant guilty of first-degree murder and possession of an instrument of crime. Judge Savitt imposed a sentence of life imprisonment for the former offense and a concurrent sentence of one to two years imprisonment for the latter. Post-sentence motions were filed and denied, Judge Savitt reimposed both sentences, and this timely direct appeal followed.

Appellant's first issue concerns the Commonwealth's attempt to rebut defense counsel's attack on the credibility of Commonwealth witness Alfonso Goldsmith by having Philadelphia Police Detective John Szymczak read into evidence portions of the statement given to him by Goldsmith several days after the homicide. On direct examination Goldsmith testified as follows: As he was getting off the elevated train or "el" at approximately 5:00 p.m. on September 23, 1989, he saw his friend Jack Fauntleroy "arguing with this guy named Stefan" on the corner of 52nd and Market Street. Stefan then went into a nearby bar and returned with appellant, known to Goldsmith as "Tone," who "started shoving Jack around." Goldsmith joined in the fight and hit appellant several times, at which point appellant and Stefan went back into the bar. Appellant then came out carrying a gun, and Goldsmith ran toward a delicatessen on the corner of 52nd Street. As he was running, he heard two shots, turned, and saw appellant chasing him with the gun in his hand. Goldsmith ran into the delicatessen and jumped behind a counter. After waiting there for ten or fifteen minutes, he returned to the scene of the altercation and saw Fauntleroy lying in the street, surrounded by a crowd of people.

As appellant explains in his brief, "It was an important part of the defense in the case to establish that it was as likely, if not more so, that the shooter was actually Alfonso Goldsmith ..." (Brief for Appellant at 15) rather than appellant. Before Goldsmith testified, the Commonwealth had called as a witness Latonia Shawver, who testified that she had seen the shooting as she waited for a bus. Although she had identified appellant as the shooter after seeing him in a lineup, it was a theory of the defense that her actual description of the shooter fit Goldsmith more closely than it fit appellant. Significantly, Shawver also testified that she had seen the shooter in a car shortly before the shooting took place.

In his cross-examination of Goldsmith, therefore, defense counsel focused on Goldsmith's appearance at the time of the shooting and also on the form of transportation that had brought him to the scene. When defense counsel asked Goldsmith, "When you arrived at the corner of 52nd and Market, you came in a car; didn't you?" Goldsmith replied, "No, I didn't." Defense counsel challenged Goldsmith's answer by reading the following portion of the statement that Goldsmith had given to Detective Szymczak on October 1, 1989:

Question: In your own words, tell me what happened leading up to the shooting of Fauntleroy?

Answer: I was getting out of a hack cab at the southeast corner of 52nd and Market. I saw Jack arguing with some black dude.

N.T. at 170. Goldsmith acknowledged that "that's what it says," that he had read Detective Szymczak's transcription of his statement before signing it, and that he had made no corrections to it. Nevertheless, he insisted that the statement quoted above was wrong because he had not arrived at the corner of 52nd and Market in a car, but rather on the el. He added that "[t]he hack is right there by the el but I didn't get out [of] the hack or no cab."

As his first witness defense counsel called Detective Szymczak, whom he questioned in pertinent part as follows:

Q: Did [Alfonso Goldsmith] tell you how it was that he arrived at 52nd and Market Street on September 23, 1989?

A: He did.

Q: What did he tell you?

A: I asked the question, in his own words, would he explain to me how he became aware of the death of Mr. Fauntleroy.

In his own words, in longhand, I wrote a statement. He told me that he arrived at 52nd and Market Street through a hack. At that point, I asked him what a hack was, and he said it was a cab, and that's how I distinguished what a hack was.

Q: After you had completed your interview of Mr. Goldsmith, in handwriting, did you show it to him to review?

A: I did.

Q: That's standard practice; isn't it?

A: Yes, sir.

Q: Did you tell him that he had the right to make corrections to anything that he read?

A: I did.

Q: Did he correct any aspect of what you just said about how he arrived; namely, in a cab?

. . . . .

A: No.

N.T. at 278-80.

The testimony that appellant now alleges was inadmissible hearsay occurred during Detective Szymczak's cross-examination by Assistant District Attorney Richard Sax, which we quote at length:

Q: Mr. Goldsmith told you he got out of a hack and was at the corner of 52nd and Market Street; is that correct?

A: That's correct.

Q: And did he tell you--he told you, it was at that point, that he saw Jack; is that correct?

A: That's correct.

Q: I would ask you to refer to the statement. Did he tell you what he saw Jack doing when he first saw Jack?

[Defense Counsel Bernard] Siegel: I object, your Honor. This is beyond the scope.

The Court: Well, I don't think it is. You asked him questions concerning the statement of a particular individual. I think the District Attorney can inquire further under those circumstances.

Mr. Siegel: I would simply note that the inquiry was limited to a particular aspect.

The Court: I understand, but that opens the door for the statement.

By Mr. Sax:

Q: Did he tell you what he saw Jack doing when he saw Jack?

A: Goldsmith stated that he saw Jack arguing with some black dude.

Q: Those were Mr. Goldsmith's words?

A: Yes.

Q: Did he tell you what that man's name was who [sic] he saw Jack arguing [with]?

A: Again, Goldsmith stated to me "I later learned his name was Stefan," and I spelled it STEFON.

Q: Did he tell you ... what they were arguing over or what he thought they were arguing over?

A: He thought that they were arguing--

Q: What were his words?

A: "I think they were arguing over a crap game or money. I stood and watched them."

Q: Did he tell you where Stefan went ...?

A: He did.

Q: Where did he tell you, in his words, where Stefan went?

A: "Then Stefan went into the bar, Skip's Bar, and right back out again, enough time to tell somebody something."

Q: Did he tell you anything about who came out of the bar?

A: "Stefan just stood there and Tone come out and got into Jack's face."

Q: Did Mr. Goldsmith tell you what, if anything, he, Mr. Goldsmith, did at that point in time?

A: He did. "That's when I got in Tone's face and told him to get out of Jack's face because he," referring to Jack, "was high."

"Tone hit me once, and I swung back. I hit him once or twice but I swung several times. He kept backing away. We was on the sidewalk, like between the two bars, Skip's and the Butterfly.

"Jack was there, like watching the boy Stefan."

Q: Did he tell you anything further about what he saw Tone do?

A: He did. He went on to say "Tone went into the bar," and in parenthesis, I put "Skip's Bar [" "] for about a minute or two, then come back out and stood in the doorway.

"I saw he had a gun in his left hand, down by his side."

He continued to say "I've been shot three different times, so I sees the gun and me and Jack run, and I heard two gunshots. Then I turned towards Tone and sees Tone pointing the gun and I ran. I ran down 52nd Street north and into a deli, which is located at 52nd and Filbert Streets.

"There was a bunch of dudes in the doorway of the deli, and I told them to get out of my way. I went in and jumped behind the counter.

"I turned a couple of times and Tone was on me and he still had the gun. That's why I went into the deli. If he hadn't...