Com. v. Floyd
| Decision Date | 25 September 1985 |
| Citation | 498 A.2d 816,508 Pa. 393 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Walter FLOYD, Appellee. 152 E.D. 1984 |
| Court | Pennsylvania Supreme Court |
Gaele McLaughlin Barthold, Chief, Prosecution Apls., Eric B. Henson, Deputy District Atty., Philadelphia, Pa., for appellant.
Joel S. Moldovsky, Philadelphia, Pa., for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
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, 476 A.2d 414, 327 Pa.Super. 569, 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?
A. Not really, no.
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?
A. No.
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?
A. Yes.
Q. Why is that, sir?
MR. SIGAL: Objection, Your Honor.
Q. Why are you unable to make an identification?
THE COURT: Overruled.
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?
A. No.
Q. And you are saying that's not the man that did the shooting?
Q. Is that what you are saying, is that this is not the man that did the shooting?
A. I don't think so. R. 56a.
The Commonwealth later called a detective, who testified that he showed Alexander a photographic array just after the shooting and that Alexander picked out a photograph of Appellee and identified him as the perpetrator. The detective showed the photograph which Alexander had signed and dated. The photograph was admitted into evidence. No reference to the photographic identification was made during Alexander's testimony.
The issue before us is whether the testimony of the detective as to the photographic identification was proper. The Commonwealth argues that it was properly admitted to rebut Alexander's testimony that he did not make an identification, given that Alexander was present in court and available for cross-examination. The Superior Court held to the contrary and ordered a new trial. It based its decision on two grounds. The first was that the Commonwealth did not comply with Rule of Criminal Procedure 305(B)(1)(d), which requires disclosure of "the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification." The defense was unaware of the photographic identification. The Commonwealth did not disclose it, although the record indicates that there was a discovery request and the prosecution had the police report of the identification. If defense counsel were aware of such identification, he might have refrained from eliciting on cross-examination the testimony of Alexander that he never made an identification. The possibility of rebuttal by means of the evidence of photographic identification could thereby have been averted. Failure to make required disclosure requires a new trial unless it can be shown to have been harmless beyond a reasonable doubt, Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981). The non-disclosure cannot be deemed to have been harmless in the instant case. The photographic identification was quite damaging to Appellee as it provided the only direct identification of him as the shooter. Because of that and the possible effect on defense counsel's examination of Alexander, the non-disclosure was prejudicial and was a proper basis for the award of a new trial.
In addition, the Superior Court found that the evidence of the photographic identification was erroneously admitted as substantive evidence, which it distinguished from admission merely for impeachment. Such admission was found to be violative of the rule against hearsay. The ruling was contrary to the Commonwealth's claim that the testimony was admissible as substantive evidence.
In Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978), a police officer testified that two individuals identified the defendant as the perpetrator of a murder. One of the individuals appeared as a witness. The other did not. In ruling on the admissibility of the officer's testimony, we did not distinguish between the two declarants. We held that the testimony was inadmissible as hearsay. We also found it to be harmless in view of other evidence of identification. We cannot find the testimony in question to be harmless in the instant case, as there was no other evidence of Alexander having identified Appellee. If a witness is unable to identify the defendant in court but made a previous identification, such previous identification may be established by questioning the witness him or herself. This was permitted in Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956) and Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978). These cases do not apply where, as here, a witness testifies as to an identification made by another person.
In Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982), a prosecution witness gave testimony in a murder case less favorable to the Commonwealth than that given at a coroner's inquest. The Commonwealth was permitted to contradict the witness by introducing the prior inconsistent statement. Such statement was admissible only to impeach the witness and not as substantive evidence. In Commonwealth v. Ballard, 501 Pa. 230, 460 A.2d 1091 (1983), two police officers testified that a Commonwealth witness identified the defendant in a pre-trial photographic array. We held that the testimony was admissible because the witness was in court and subject to cross-examination. The Commonwealth places great reliance on Ballard and argues that it requires the admission of the testimony in question in the instant case. The Ballard opinion did not mention Slaughter, nor did it address either the question of harmlessness, the question of whether the witness must have been questioned about the previous identification and denied making it, or the question as to whether the testimony was admissible as substantive evidence or merely for impeachment purposes. Justice Flaherty, concurring in Ballard, believed that the testimony was inadmissible but harmless in view of other competent identification evidence. We do not read Ballard as overruling the holding in Slaughter. The testimony as to the identifications in that case, which we found to be improper though harmless, was admitted as substantive evidence and was not used for impeachment. The case can be harmonized with Waller and Ballard. Waller addressed the distinction between substantive and impeachment evidence. Reading the cases together, we hold that a witness may testify as to an identification made by another person if and only if such other person is present in court, is available for cross-examination, has testified, has been questioned about the previous identification, and has denied making it. The testimony as to the identification is to be admitted in such circumstances as a prior inconsistent statement. Applying Waller, we hold that the evidence is admissible only for impeachment and not as substantive evidence. The court must so instruct the jury. That was not done in the instant case. The jury was permitted to view the evidence in question as substantive, which was improper and requires that the conviction be set aside.
The Order of the Superior Court is affirmed and the case is remanded to the Court of Common Pleas for a new trial.
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