Com. v. Hickman

• Decision Date: 19 September 1973
• Parties: COMMONWEALTH of Pennsylvania v. Deuene HICKMAN, Appellant.
• Court: Pennsylvania Supreme Court

Page 564

309 A.2d 564

453 Pa. 427

COMMONWEALTH of Pennsylvania v. Deuene HICKMAN, Appellant.

Supreme Court of Pennsylvania.

Sept. 19, 1973.

[453 Pa. 429] James A. Ashton, Pittsburgh, for appellant.

Robert W. Duggan, Dist. Atty., Robert L. Eberhardt, J. Kent Culley, Asst. Dist. Attys., Pittsburgh, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

JONES, Chief Justice.

On October 7, 1971, Deuene Hickman was found guilty by a jury of murder in the first degree. Post-trial motions were denied and a sentence of life imprisonment was imposed. This appeal followed.

The crucial evidence adduced in the Commonwealth's case in chief was the identification testimony of the victim's son and daughter who saw the appellant fleeing from the scene. Appellant contends that the identification testimony was insufficient to establish the guilt of appellant beyond a reasonable doubt. This contention is without merit.

Proof beyond a reasonable doubt of the identity of the accused as the person who committed the crime is essential to a conviction. Commonwealth v. Reid, 123 Pa.Super. 459, 187 A. 263 (1936). The evidence of identification, however, needn't be positive and certain in order to convict, although any indefiniteness and uncertainty in the identification testimony goes to its weight. Commonwealth v. Mason, 211 Pa.Super. 328, 236 A.2d 548 (1967). Direct evidence of identity is, of course, not necessary and a defendant may be convicted solely on circumstantial evidence. See e.g., Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963); Commonwealth v. Whiting, 409 Pa. 492, 187 A.2d 563 (1963). The rule as stated in Commonwealth v. Kloiber, 378 Pa. 412, 424--425, 106 A.2d 820, 826, cert. denied 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954), is that '(w)here the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution--indeed the cases say that 'his (positive) testimony as to identity may be treated as the statement of a fact'. Commonwealth v. Ricci, 161 Pa.Super. 193, 195, 54 A.2d 51, 52, Commonwealth v. Sharpe, 138 Pa.Super. 156, 159, 10 A.2d 120.'

In the instant case two witnesses positively identified the appellant as the one seen fleeing the house. The possible bias of the witnesses and the circumstances surrounding their opportunities to see their mother's assailant were questions for the jury. The test of sufficiency of evidence is whether accepting as true all evidence and all the reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that defendant is guilty. Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970). Here, where both witnesses were acquainted with the subject of identification, their positive unqualified identifications were sufficient proof of identity and appellant's motion in arrest of judgment was properly denied by the lower court.

Appellant next argues that a new trial is required because of prejudicial error in the admission of the Commonwealth's rebuttal evidence. During the Commonwealth's case in chief the testimony had established that the murder weapon was a .32 caliber automatic pistol, but had failed to link any such weapon to the appellant. The appellant later took the stand on his own behalf and was asked on cross-examination if he had ever owned a .32 caliber Beretta pistol, if he had ever been to the Hughes Gunsmith Shop, and in particular whether he had taken a .32 caliber Beretta automatic to that gun shop for repairs on January 2, 1970. To all these inquiries appellant responded in the negative.

In rebuttal, the Commonwealth called Edward L. Hughes, owner of the gun shop. Hughes testified that on January 2, 1970, the appellant had brought a Beretta pistol to him for repair, and that he, Hughes, had fired several bullets into a bullet trap. Hughes testified that he later recovered approximately eighty .32 caliber bullets which had been accumulating in the trap for ten years. These bullets later came into the possession of William Valenta, the Commonwealth's ballistic expert, who testified that two of the bullets had been fired from the murder weapon. Appellant objected to this testimony as improper rebuttal evidence.

We have repeatedly held that the order of presentation of evidence is a matter which is largely within the discretion of the trial judge. The introduction of evidence by the Commonwealth, after the defense rests its case, which could have been offered by the Commonwealth during its case in chief is not necessarily grounds for reversal. Commonwealth v. Koch, 446 Pa. 469, 288 A.2d 791 (1972). Evidence is admissible in rebuttal to contradict that offered by defendant or his witnesses, even though by doing so the Commonwealth supplies fatal defects in is case in chief. 2 Henry, Pennsylvania Evidence, § 730 (4th ed. 1953). In addition, a party may produce evidence to rebut testimony which he himself elicited from his opponent's witness on cross-examination. Blauvelt v. Delaware, Lackawanna & Western Railroad Co., 206 Pa. 141, 55 A. 857 (1903). Clearly, the testimony of Mr. Hughes which contradicted the appellant's testimony on cross-examination was properly admitted as rebuttal. The further testimony by Mr. Hughes describing shooting the pistol into the bullet trap, retrieving the bullets and handing them over to the police would be admissible, as held by the lower court, as an elaboration of the previous rebuttal testimony.

For the same reason, the lower court also held admissible the testimony of Lieutenant Valenta which showed two of the bullets fired from the bullet trap to have been fired from the murder weapon. This was error. It is not proper to submit on rebuttal, evidence which does not in fact rebut the opponent's evidence. Myers v. Metropolitan Life Insurance Co., 152 Pa.Super. 507, 33 A.2d 253 (1943). The...