IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

COMMONWEALTH

VS.

MUMIA ABU-JAMAL

aka

WESLEY COOK

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January Sessions, 1981
NOS. 1357 Poss Instru of Crime Gen
Poss Instru of Crime Weap
1358 Murder
Voluntary Manslaughter
1359 Involuntary Manslaughter

Philadelphia, Pa., June 23, 1982

Courtroom 253, City Hall

Before: HONORABLE ALBERT F. SABO, J. and Jury

APPEARANCES:
  • JOSEPH McGILL, ESQUIRE
    Assistant District Attorney for the Commonwealth
  • ANTHONY E. JACKSON, ESQUIRE
    Backup Counsel for the Defendant

Page 2.

(Court convened at 10:00 o'clock a.m.)

- - -

(The following took place in open court in the presence of the jury:)

MR. MCGILL: May I proceed, sir?

THE COURT: Yes.

MR. MCGILL: Officer Francis Dixon.

- - -

COMMONWEALTH'S EVIDENCE (Cont'd)

POLICEMAN FRANCIS DIXON, (Badge Number 1776, Sixth Police District), having been duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. McGill:

Q. Officer Dixon, on December the 9th, 1981 where were you employed?

A. City of Philadelphia in the 6th District.

Q. Did you have occasion, sir, to seize any evidence in this particular case?

Page 3.

Dixon - Direct

A. Yes, I did.

Q. What was it?

A. It's a bullet.

Q. And do you have it there?

A. Yes, I do.

Q. Where did you seize that evidence from?

A. It came from the defendant's body. I was in operating room at the time.

Q. And who removed it? Do you know?

Dr. Coletta.

Q. All right. I'll ask that this be marked C-37 and shown to the defense council. Could you take a look at C-37, sir?

A. It's still sealed. I have to get it open. It's in a plastic vial which was put in there -- the nurse put it in there in the operating room.

Q. Did you observe that?

A. Yes, I did.

Q. May I see that? Now, also besides Dr. Coletta present there, the supervising or attending physician, Dr. Jarrel was there also, wasn't he?

A. Not when the bullet was removed.

Page 4.

Dixon - Direct

Q. Where was he then?

A. He had left the operating room. Once all the work had been done inside of the defendant and they closed him that doctor left.

Q. Okay. What do you mean that doctor? Dr. Jarrel?

A. Dr. Jarrel.

Q. But you know of Dr. Jarrel as being the supervisor over Dr. Coletta?

A. That's correct.

Q. That's why his name, Dr. Jarrel, is on the jar?

A. When the nurse placed it in there she put the doctor who was in charge of the operating room's name on this.

MR. MCGILL: Okay. Would you show that to -- I don't think Mr. Jackson has seen that jar.

MR. JACKSON: I'm going to object and move to strike why someone else did something. It's indicating what she's done.

THE COURT: Motion is denied.

BY MR. MCGILL:

Q. What did you do with that particular piece of

Page 5.

Dixon - Direct

evidence?

A. I kept it in the plastic -- I held onto it until homicide detectives arrived on the scene so it could be transported to Ballistics.

Q. And who was the homicide detective that you gave it to?

A. Detective Morton.

Q. Morton?

A. Morton, yes.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION BY MR.JACKSON:

Q. I'm sorry? Is that Nixon, or Dixon?

A. Dixon -- D-I-X-O-N.

Q. Officer Dixon, did you see, in fact, where the bullet was removed from his body?

A. Yes, I did.

Q. Where?

A. It was in his -- I have to stand up.

Q. Would you please?

A. Yes. In the area of the back right around here, generally.

Page 6.

Dixon - Cross

Q. So that would be the right lower back?

A. Yes.

Q. Did you have occasion to see where he was shot?

A. No, not specifically.

Q. Well, do you know generally?

A. The front of the body.

Q. Approximately where?

A. I don't know that.

Q. You didn't see it?

A. No. When I saw him he was in a hospital bed and he was covered.

Q. How long did the operation take, sir?

A. I'm not sure.

Q. Can you approximate for us in any way?

A. Well, I didn't have a watch with me. I had to take all my things off to go to the operating room.

Q. And it was just one bullet, wasn't it?

A. That's correct.

MR. JACKSON: Fine. I have no further questions.

Page 7.

Dixon - Redirect

REDIRECT EXAMINATION

BY MR. McGILL:

Q. Officer, you did know that the entrance of the bullet was in the front of his body?

A. Yes, that's correct.

Q. You're not sure where?

MR. JACKSON: I object, Your Honor. He just said he didn't see the wound. How is he going to now say front?

THE COURT: Don't get excited. Okay. Sustained.

BY MR. MCGILL:

Q. Is that correct?

A. Yes.

MR. JACKSON: I object.

THE COURT: The objection was sustained.

MR. MCGILL: Yes, sir. I didn't hear the ruling because he was talking.

THE COURT: All right.

MR. MCGILL: I have nothing further. Thank you.

MR. JACKSON: I have something more, Your Honor.

Page 8.

Dixon - Recross

RECROSS-EXAMINATION

BY MR. JACKSON:

Q. Since you know where the bullet went and it went through the front, it was higher than where it was removed, right?

A. No, sir. I only know it was in the front. I didn't know where.

MR. MCGILL: I concede that, upper chest.

THE COURT: All right.

MR. MCGILL: Thank you.

- - -

(Witness excused.)

- - -

MR. MCGILL: Detective Morton.

DETECTIVE JAMES MORTON, (Badge Number 933, Homicide Division), having been duly sworn, was examined and testified as follows:

Page 9.

Morton - Direct

DIRECT EXAMINATION

BY MR. MCGILL:

Q. All right. Detective Morton, did you have occasion to seize any evidence specifically from the hospital and from Officer Dixon in connection with this case?

A. Yes, I did.

Q. What was that piece of evidence?

A. It was a projectile recovered from Mumia Abu-Jamal.

Q. Would you show C-37 to Detective Morton? Can you identify what you have in your hand, C-37?

A. This is the vial I received from the hospital from Officer Dixon.

Q. What did you do with it?

A. I submitted it on a property receipt to ballistics.

Q. Was that on December the 9th, 1981 that you received it?

A. Yes.

Q. From Officer Dixon? What is the property receipt?

A. I don't have it with me.

Q. What is a property receipt?

Page 10.

Morton - Direct

A. It's a property receipt that we make out, a property receipt on the evidence. It's numbered and then we submit it to Ballistics Lab.

Q. I ask this be marked C-38. Show it to the defense, the Court and the witness. I'm showing you what has been marked C-38. Would you take a look at C-38? What is C-38? Can you identify it?

A. That's the property receipt I made out. It's number 854921.

Q. And what did you do with the vial there with the projectile as well as the property receipt?

A. It was submitted to Ballistics.

Q. Where?

A. Ballistics at 8th and Race.

Q. For what purpose?

A. For comparison with officer Faulkner's gun.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION

BY MR. JACKSON:

Q. Detective Morton, you just indicated that you submitted it to Ballistics. Who, who in particular,

Page 11.

Morton - Cross

did you give it to?

A. I don't recall.

Q. You don't recall?

A. No.

Q. No idea at all?

A. No.

Q. Can you describe the person?

A. No.

Q. Have you seen the person before?

A. Probably seen him before but I don't remember who it was.

Q. Have you seen the person since?

A. Probably have, yes.

Q. You said probably have. How did you know that this person was the one to receive the bullet?

A. They were working in Ballistics at the time.

Q. Just happened to be in the lab?

A. Yes.

Q. In the Ballistics Lab?

A. Yes.

Q. And you just gave it to them?

A. Yes.

Q. Now, there's no requirement that you indicate

Page 12.

Morton - Cross

who it is that you give the projectile to, the evidence to?

A. No.

Q. Now, you indicated that the projectile be compared with Officer Faulkner's weapon: is that right?

A. Yes.

Q. Who was it that instructed you to have it compared with Officer Faulkner's?

A. The supervisor in Homicide.

Q. Who is the supervisor?

A. I believe Lieutenant McGowan.

Q. McGowan?

A. Yes, sir.

Q. Did he instruct you in any way to have the bullet compared with anyone else's weapon?

A. No.

Q. Do you know for a fact whether it was compared with any other weapon?

A. No.

Q. Were you given any other evidence to submit to Ballistics.

A. No.

Page 13.

Morton - Cross

MR. JACKSON: I have no further questions. Thank you very much.

MR. MCGILL: Thank you, Detective Morton.

- - -

(Witness excused.)

MR. MCGILL: Detective Deyne.

- - -

POLICEMAN MIGUEL DEYNE, (Badge Number 1606, Homicide Unit), having been duly sworn, was examined and testified as follows:

MR. MCGILL: Would Your Honor just -- briefly, one moment?

THE COURT: That's okay.

DIRECT EXAMINATION

BY MR. MCGILL:

Q. Detective Deyne, on December the 9th, 1981, did you have occasion to go to Medical Examiner's Office and receive any evidence?

Page 14.

Deyne - Direct

A. Yes, sir.

Q. What was the evidence that you received?

A. The evidence that I received from Dr. Hoyer; it's a bullet specimen that was given to me inside a manila envelope which was sealed.

Q. Okay. And who gave it to you?

A. Dr. Hoyer, Medical Examiner.

Q. H-O-Y-E-R: is that correct?

A. Yes.

MR. MCGILL: May I see that, please? I ask that it be marked C-39. While you're marking that I'd ask that this be marked C-40 and C-41, these documents, in that order, please;

(A discussion was held off the record.)

BY MR. MCGILL:

Q. First of all, I'll ask you to take a look at C-39, sir. Would you open that up and see if you can identify that? How was it given to you?

A. It was given to me this way.

Q. All right. Sealed. So you didn't see the projectile itself?

A. No. It was already with a white label sealed.

Page 15.

Deyne - Direct

Q. Okay. Fine. Can you identify what you see there, C-39?

A. This is a small manila envelope. It has a label from the Office of the Medical Examiner.

Q. All right. Let me see if I can first -- can you identify this particular page as the page you had received?

A. Yes.

Q. And what if anything did you do with that particular exhibit?

A. I filled up a receipt given to me by the doctor. I signed it and at that time I returned to my headquarters where I placed the envelope and the contents on a property receipt.

Q. Okay. Take a look at C-40, if you would?

A. Yes.

Q. Can you identify C-40?

A. Yes. It's a photocopy of the receipt I signed for the doctor.

Q. And did the doctor also sign it?

A. Yes. His name is there.

Q. Would you take a look at C-41? Can you identify C-41?

Page 16.

Deyne - Direct

A. Yes. It's a copy of the property receipt which I made on December the 9th.

Q. And did you sign that?

A. Yes.

Q. And what is your number, your Badge Number?

A. My Badge Number is 1606.

Q. What did you do with the property receipt and C-39?

A. I submitted that to Ballistics at the Police Administration Building.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION BY MR. JACKSON:

Q. May I have the number of the property receipt again, please?

A. Yes. 854921.

Q. I assume you took it directly to Homicide Headquarters, sir?

A. Yes, sir.

Q. When you came from the Medical Examiner's?

A. Yes, sir.

Q. And at that time that's when you placed it on

Page 17.

Deyne - Cross

property receipt?

A. That's correct.

Q. How long after that did you take it to Ballistics?

A. Immediately after.

Q. Okay. Did you go there alone, sir?

A. Yes, sir.

Q. And who in Ballistics did you give it to?

A. That I can't remember.

Q. You have no idea?

A. Well, in the back of the property receipt it's stamped the time that I gave it to, I believe it's Quinn. There is a signature there but I can't --

Q. There is a signature there?

A. Yes. Yes.

Q. Fine. And could you read the time stamped or is that --

A. Four twenty-six.

Q. And that's on 12/9; is that right?

A. Yes. Yes.

MR. JACKSON: Thank you. I have no further questions. Thank you, sir.

Page 18.

Deyne - Redirect

REDIRECT EXAMINATION

BY MR. MCGILL:

Q. May I see that document that you say is stamped? That's 4:26 a.m., or p.m. on that?

A. P.M.

MR. MCGILL: Nothing further.

MR. JACKSON: I have nothing further.

(Witness excused.)

- - -

MR. MCGILL: Officer Zenak.

- - -

OFFICER JOSEPH ZENAK, (Badge Number 5439, Police Pistol Range), having been duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. MCGILL:

Q. All right. Officer, what is your present occupation?

A. Policeman assigned at Police Pistol Range.

Q. And as part of your duties are you the Custodian of Records?

A. Yes, I am, sir.

Page 19.

Zenak - Direct

Q. For the --

A. Yes, I keep the City owned gun records.

Q. The City what?

A. City owned gun records.

Q. And the only official record of City owned guns, that is, by City employees in your custody?

A. Yes, sir.

Q. Are you familiar how those records are kept?

A. Yes, sir.

Q. And do you make those records upon the time that you receive the information?

A. Yes, sir. The time the gun is issued or returned.

Q. Have you brought some records in court today?

A. Yes, I have.

Q. Would you take them out?

A. I have them out.

Q. And what records have you brought?

A. It's an IBM card when a policeman is issued a gun at the Police Academy every policeman signs this IBM card here, has his name, badge number, payroll number, the date it was issued and his gun number, gun serial number. It's signed at the time it's issue,

Page 20.

Zenak - Direct

the gun.

Q. Now, is that your main record that you have?

A. We have this signature card every policeman must sign and every week, naturally, the guns are turned in, reissued, and every week it's updated on the microfilm here. I update the records in the computer.

Q. All right.

A. At one time we used to have the paper records as such here. Now everyone's on microfilm.

Q. I'm showing you a document. Could you take a look at that document to see if that is any different than any of those others?

A. This is the original card that the officer signs.

Q. Okay. Now, may we -- do you have a copy of that card?

A. I have a copy because Homicide Unit requested the original.

Q. Okay. Fine. Well then, could I ask that that copy be marked C-42? Is that in any way different than the original?

A. No, sir. It's different material, that's all.

Q. Okay.

Page 21.

Zenak - Direct

THE COURT: Show C-42 to Mr. Jackson.

BY MR. MCGILL:

Q. May I approach the witness, Your Honor?

Q. All right. Now, I'm showing you what has been marked C-42 which you state is a copy --

A. Yes, sir.

Q. -- of the original records. Now, on that is it also a copy of a signature of the individual?

A. Yes, sir.

What is the name there?

Daniel J. Faulkner

Is there a serial number on that card?

A. Yes, sir, D792117.

Q. Where else will that serial number be recorded?

A. It's recorded alphabetically by card, numerically by card and also on the microfilm and also when it was received by the City on the purchase order.

Q. Would that serial number also be -- where do you get that serial number from originally?

A. The number is taken off the butt of the Smith & Wesson.

Q. Would you take a look at C-23, please? Would you clear that gun, Officer, please, or see if it's

Page 22.

Zenak - Direct

clear to your satisfaction?

A. Yes, sir.

Q. Would you take a look at C-23 and look at that serial number?

A. I need a screw driver, sir.

Q. You know more about guns than I do, I guess.

A. Well, we do have a number stamped for our convenience in the frame here but sometimes they do stamp the wrong number. The original serial number is on the butt of the weapon.

Q. As far as the side of the weapon is concerned is that supposed to be the same serial number?

A. Yes, sir.

Q. What is that number? Or are you able to see it?

A. D792117. It's kind of hard when there's no light.

Q. May I see the weapon?

A. Yes, sir.

THE COURT: There's a screwdriver.

BY MR. MCGILL:

Q. Where is the part you were looking at?

A. The part I was looking at is right here.

Q. Very good eyes. Would you also use the

Page 23.

Zenak - Direct

screwdriver?

A. D792117.

Q. Will you take a look, after you put that back -- don't screw it back because defense counsel may want to take a look at it.

A. Yes, sir. I just put it in lightly.

Q. Okay. Would you take a look at the card and read that serial number?

A. D792117.

Q. Is that the same number?

A. Yes, sir.

Q. What was the date of issue?

A. Date of issue is 10/6 of '76.

Q. And is it customary when a police officer enters the Academy to be issued a weapon?

A. Yes, sir. He's issued the weapon from the Academy.

MR. MCGILL: Cross-examination.

CROSS-EXAMINATION

BY MR. JACKSON:

Q. Officer Zenak, you indicate that a police officer is issued the weapon at the Academy, every police

Page 24.

Zenak - Cross

officer is issued --

A. No, sir.

Q. Okay. Tell us how it is some are issued and some aren't.

A. The majority of weapons are issued at the Philadelphia Police Academy. On occasion when a weapon is used on the street they do have revolvers for issue at Ballistics. When a policeman returns the revolver to Ballistics, or detective, they are issued another weapon from the Ballistics Unit. This policy started approximately a year and a half ago. Before that all weapons were issued at the Philadelphia Police Academy, and before that also a few weapons were issued from the Armory Unit which has been closed now for two years.

Q. Now, is it Homicide that may issue other weapons?

A. No, sir.

Q. I'm sorry?

A. Ballistics.

Q. I'm sorry. Ballistics. I'm sorry. And who at Ballistics would do that? Do you know?

MR. MCGILL: Objection. Beyond the scope, Judge.

Page 25.

Zenak - Cross

MR. JACKSON: If he knows.

MR. MCGILL: It's not a question of if he knows. It's beyond the scope.

THE COURT: The objection is well taken. I'll explain it to you over here, if you wish.

MR. JACKSON: It's not that important now, Your Honor. Thank you.

BY: MR. JACKSON:

Q. Do you know whether in fact Officer Faulkner was ever issued a weapon?

A. Could you repeat that?

Q. Yes. Do you know whether in fact Officer Faulkner was ever issued an additional weapon?

A. No, sir, he was not.

Q. Do you know that for certain, sir?

A. Yes, sir.

Q. You checked with Ballistics?

A. No, sir. I have the records.

Q. Yes?

A. When Ballistics issues a gun they immediately call me up and tell me what gun they issue. I send maybe nine guns at a time down there, record the

Page 26.

Zenak - Cross

serial number. Now, when they have to issue a weapon they call me and tell me what weapon they issue, because I have to update it on the computer.

Q. Now, obviously these weapons that you issue to the individual officers are not transferrable, meaning they're not supposed to lend one to a brother officer: is that correct?

A. That's correct.

Q. They might be in violation; is that right?

A. That's correct, sir.

Q. Now, the officers are also permitted, are they not, to purchase weapons on their own?

A. Yes, sir.

Q. But the weapons that they carry on duty are supposed to be the weapons that were issued to them; is that correct?

A. That's correct, sir.

Q. And if they indeed were to carry a weapon that was not issued to them that would also be a violation; is that correct?

A. Yes, sir, unless they get permission from the commanding officer such as Undercover Details or JAD officers.

Page 27.

Zenak - Cross

Q. Now, you would, of course, know if Officer Faulkner had that permission, would you?

A. Yes, sir.

Q. Did he have any permission to carry any other weapon other than the one that you've just described?

A. That I don't know, sir.

Q. Who would know?

A. I would say probably his commanding officer. I really don't know.

Q. How about Stakeout Officers?

MR. MCGILL: Objection, Your Honor. He's here just to --

THE COURT: I'll sustain the objection. There's no relevancy.

MR. JACKSON: May I just see the weapon, please? Your Honor, may I approach the witness, please?

THE COURT: Yes.

BY MR. JACKSON:

Q. Can you show me the serial number, if you don't mind, sir?

A. Certainly.

Page 28.

Zenak - Cross

Q. Oh?

A. That's it.

MR. JACKSON: Okay. Thank you very much, Officer. I have no further questions.

MR. MCGILL: Does the Court have any questions, sir?

THE COURT: No.

MR. JACKSON: Oh, I do have some additional questions, if you don't mind, Your Honor.

BY MR. JACKSON:

Q. It's on a point you testified on direct. Just to clarify something for me, Officer Zenak. You indicate that every week the card is updated in some way?

A. That's correct, sir.

Q. Could you tell me how this or what this process is?

A. Yes, sir. Naturally every week guns are being exchanged, men want pensions, a gun may be brought in because it needs repair or reglue. The man returns and is issued another weapon unless he's on pension. Now on Friday I go up and I update this in the

Page 29.

Zenak - Cross

computer, and the following week they send the updates back on a microfilm which I in turn check to make sure it's correct.

Q. But an individual officer, as an example Officer Faulkner, I mean there has been no requirement that every week he submit something to you: is that it?

A. No, sir.

Q. So as far as you know, once the weapon is issued it's his unless and until you get some information to the contrary?

A. That's correct, sir.

MR. JACKSON: Thank you very much.

REDIRECT EXAMINATION

BY MR. MCGILL:

Q. Did you at any time get any information to the contrary from the time that it was purchased or rather from the time that it was issued to him --

A. No, sir.

Q. -- until the time of his death?

A. Excuse me, sir?

Q. Excuse me, sir. Until the time it was issued to him until the time of his death, did you receive

Page 30.

Zenak - Cross

any information that it was transferred to anyone else?

A. No, sir.

MR. MCGILL: Thank you. I have nothing further with Officer Zenak.

Mr. Joseph Grimes.

- - -

(Witness excused.)

- - -

(A discussion was held off the record.)

JOSEPH GRIMES, (Latent Print Examiner, Evidence Technician 3, Philadelphia Police Department), having been duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. MCGILL:

Q. Mr. Grimes, what is your occupation?

A. I'm the Latent Print Examiner for the Identification Unit Philadelphia Police Department.

Q. And are you the supervisor of that unit?

Page 31.

Grimes - Direct

A. Say that again?

Q. Are you the supervisor of that unit?

A. I am the whole unit, supervisor/manager.

Q. Mr. Grimes, would you tell the jury your function, first of all, in the unit, in your unit?

A. The function of the unit is to gather the fingerprints that have been developed at the scene of an incident, file them until such time as a comparison can be made, make that comparison at that time and testify as to the results.

Q. All right. Did you have occasion to receive certain lifts in connection with this case?

A. I did.

Q. And do you have those lifts here today?

A. I do.

Q. Would you take them out, please? Now, before you testify concerning them, would you tell the jury exactly your qualifications for your position?

A. I'm a graduate of the Pennsylvania Institute of Criminology, hold a certificate in Police Science and Administration from Temple University Community College, have attended seminars with Kodak Company and United States Training Department. I'm a lecturer

Page 32.

Grimes - Direct

in this particular subject in La Salle College, Temple University, Bucks County Community College, Lehigh County College, Philadelphia Community College and the Philadelphia Police Academy.

Q. How long have you been involved in the fingerprint area?

A. Twenty-eight years.

Q. Approximately how many lifts have you made and analyzed?

A. Thousands.

Q. Have you testified in court?

A. Numerous times.

Q. Approximately how often have you testified in court as an expert on this matter?

A. Oh, in the vicinity of 30, 40 times a year.

Q. Sir, what jurisdictions have you testified in?

A. Philadelphia, State of Maryland, and the Federal District Courts.

MR. MCGILL: Cross-examine on qualifications.

MR. JACKSON: May it please the Court, I am familiar with Mr. Grimes' qualifications. I have no questions.

Page 33.

Grimes - Direct

BY MR. MCGILL:

Q. All right. Mr. Grimes, you do have those prints in front of you, those lifts?

A. I do.

Q. And what were your results in analyzing those particular lifts?

A. There are no identifiable latent prints on these cards.

Q. Now, two of those lifts, sir, were in reference to weapons. Perhaps we could show Mr. Grimes C-22 and C-23. Do you have the lifts from the .38 caliber Smith & Wesson, as well as, the .38 caliber Charter Arms?

A. Yes, sir.

Q. If you need to make reference to the exhibits, the weapons, they're right on your side.

MR. JACKSON: Your Honor, for clarification sake --

MR. MCGILL: Your Honor, do we wish to go to side bar?

MR. JACKSON: Fine.

THE COURT: Yes.

Page 34.

Grimes - Direct

(A side bar conference was held on the record as follows:)

MR. JACKSON: As I understand it, he didn't take the lifts and for him to start talking about the weapons and the lifts and all, he can't do that because he didn't take them. All he can go by is what was given to him on a card.

MR. MCGILL: Well, he would be testifying as an expert if I ask him any questions in reference to lifts from those particular type of items, those particular type of weapons. He will not testify to the lifts, of taking the lifts.

MR. JACKSON: Oh.

MR. MCGILL: But he may answer questions as an expert to lifts being taken from those kinds of weapons.

MR. JACKSON: Fine.

THE COURT: All right.

(Side bar conference ended.)

BY MR. MCGILL:

Q. All right. First of all, would you explain to

Page 35.

Grimes - Direct

the jury what you mean by lifts, what you mean by identifiable, and although you have not yet used the words since it hasn't been required, what you mean by point.

A. A lift is a piece of Scotch tape that has been placed over an area that has been powdered with different colored powders to develop the latent print. When a print is developed and Scotch tape is placed over it in such a way as to lift it and mount it on the back of our form card. A print is a print from the finger. On the finger there are various portions of skin known as papillary ridges. These ridges have characteristics; that is, they divide themselves into two ridges for flat formation. They may do that and come back together again like the eye of a needle. There are various types of things these ridges do, and they're all characteristics. These remain constant through our life and these are the points of identification that we are talking about. Does that answer your question?

Q. Yes, sir. Did you at my request bring a photograph or an exhibit of a fingerprint, of a complete

Page 36.

Grimes - Direct

fingerprint?

A. I did.

Q. Would you show that to the jury, please? All right. Now, I'd ask that this be marked C-43. All right. Now, Mr. Grimes, from your position there, if you could, show the jury what you mean by characteristics?

A. This is a photograph --

MR. MCGILL: Excuse me? It might be better, Your Honor, if the Court would allow me, if Mr. Grimes could perhaps walk over here and speak to the jury closer so the members in the back could see what these ridges look like. Is that all right, Your Honor?

THE COURT: Sure. If Mr. Jackson wishes to come over.

MR. MCGILL: Speak loud so the defendant and defense counsel can hear.

THE WITNESS: This is an enlarged photograph of a fingerprint. The black lines that you see here are the raised portion of the skin, the papillary ridges that are referred to. You can see how they go along, they might

Page 37.

Grimes - Direct

come along and split into two. It might be like an enclosure of the eye of the needle. There are only approximately six different characteristics but it's the arrangement of these characteristics that are used to identify a print.

BY MR. MCGILL:

Q. Now, is it that a print like that, the Exhibit C-43, is it true to say that that particular print would be unique to only one individual?

A. Yes, sir.

Q. And it is because of the pattern that you've described, the characteristics, the ridges and all the different words that you've described; is that correct?

A. By the characteristics, yes, not the pattern.

Q. All right. Now, you mentioned the word or used the word point. Would you explain what point means and what identifiable means in connection with one's ability to match up a fingerprint to a specific individual?

A. The point of identification are these characteristics. In order to make an identification, that

Page 38.

Grimes - Direct

is to say, that one print is made by the same person as another print we must have a series of these characteristics or prints depending upon circumstances between 9 and 12 of these characteristics in sequence.

MR. JACKSON: Can you repeat that? I'm sorry. I didn't hear you.

THE WITNESS: So that you have to have a series of these characteristics in sequence approximately between 9 and 12 points are depending upon the circumstances that are present.

BY MR. MCGILL:

Q. And when you have a sufficient number of points, as you stated, at that point you're able to, say that you can have a match up to a specific individual?

A. That's correct.

Q. Thank you, Mr. Grimes. You can return to your seat. Now, I'm going to ask you to take a look at the specific lifts that you had received from Mobile Crime Detection personnel in connection with the two weapons --

MR. JACKSON: Objection, Your Honor.

Page 39.

Grimes - Direct

There's been no indication that that's where he's received it from.

BY MR. MCGILL:

Q. Where have you received those lifts from?

A. These lifts were received from the Mobile Crime Detection Unit indirectly through an assistant of mine.

Q. And what was his name?

A. His name is Eugene Famighietti who is a part time worker with me.

Q. How is that spelled?

A. F-A-M-I-G-H-I-E-T-T-I. I'm not sure.

Q. And what is his position in your unit?

A. He had worked with me at a point in time and now holds another position. However, in my absence he does stand in for me.

Q. I see. So you had received the lifts from Mr. Famighietti?

A. That's correct.

Q. And is there a notation from whom he received it in your records?

A. There is a signature of Roy Land.

Q. Roy Land -- L-A-N-D as in dog?

A. That's correct.

Page 40.

Grimes - Direct

Q. And you know that he is from the Mobile Crime Detection Unit; is that correct?

A. Yes, sir.

Q. Now, would you take a look at those lifts that are directly related to the two weapons.

MR. JACKSON: Your Honor, I am going to object. Counsel is testifying.

MR. MCGILL: Your Honor, I'm directing his attention to specific lifts.

THE COURT: Go ahead.

BY MR. MCGILL:

Q. The cards that have on it the weapons --

A. Yes, sir.

Q.-- would you explain what the results were there?

A. The results are that there are no ridge formations on these cards at all. The pattern adhered to the various metal parts of the gun and that is all.

Q. So let me ask you this: How many points are there?

A. None.

Q. None? So obviously you're unable to say anything at all about connecting that to any person?

Page 41.

Grimes - Direct

A. That's correct.

Q. What are the difficulties in your experience in obtaining prints from weapons?

A. There are many difficulties involved with firearms. You want me to --

Q. Yes, please. Just tell the jury.

A. It is a hard-smooth surface; that is the only thing in its favor. It is usually with a nitrate solvent and an oil which blends with the print and, therefore, nullifies it or it is not taken care of very well. And we have a situation of one print being on top of another print being on top of another print. And over a period of time we get a total reaction from a surface rather than an individual print.

Other problems involved with firearms are the way they are carried. In a holster or in a pocket they are constantly wiped as they are moved in and out of these areas. Any prints are usually smeared or smudged in that procedure. If the firearm is fired the firing of that gun has a tendency to smear the print.

There are approximately 65 of these

Page 42.

Grimes - Direct

ridges in a given inch and, therefore, it is only one 65th of an inch movement when you see a print.

Q. What is the affect of say perspiration on a weapon on the ability to obtain a print?

A. Well, the print is perspiration that is placed on something.

Q. So that to the extent that it is dry or so it would affect the ability of --

A. Well, the body oils -- all right. There's approximately one and a half percent solution of one and a half percent of solids in perspiration: that is, 98.5 percent water and one and a half percent solids. The water evaporates very quickly and there are body fats and oils that are left. These can dry out over a period of approximately two weeks, in that area, two, three, four weeks. It depends on what happens in the atmospheric conditions.

Q. Do you have a DC number on that particular card in reference to the prints that you received in connection with this case?

A. Yes, sir.

Q. What is that DC number?

A. Year is '81, month is 6, the number 80238.

Page 43.

Grimes - Direct

Q. And have you signed those cards?

A. I have initialled them, yes, sir.

Q. Is it not true, Mr. Grimes, that from your experience because of the many factors that you mentioned that it is unusual to get a print from a weapon?

A. Yes, sir.

MR. MCGILL: Cross-examine;

CROSS-EXAMINATION

BY MR. JACKSON:

Q. Mr. Grimes, you've been involved with fingerprints for 20 years; is that right, sir?

A. More than that.

Q. Over 28 years.

A. Yes.

Q. How many times have you lifted, you yourself lifted, prints from weapons?

A. Still count them on my fingers, sir.

Q. How many?

A. Approximately eight.

Q. How many times in your experience have you been requested to compare prints that were allegedly lifted

Page 44.

Grimes - Cross

from a weapon?

A. About the same number of times.

Q. Given the fact, sir, that your position -- how long have you been in your present position?

A. Approximately eight years.

Q. And before then that responsibility was held or shared throughout the Identification Unit;. is that correct?

A. That and at the Mobile Crime Lab, yes, sir.

Q. Given the total of the Identification Unit, the Mobile Crime Unit do you have some estimate with regard to how many latent comparisons were made from weapons on a yearly basis?

A. On a yearly basis?

Q. Yes, sir.

A. I would say one or two. I doubt if it was even that high.

Q. And you're only requested to do that when there is, perhaps, a question with regard to who handled a weapon: isn't that right?

A. No. We go through cycles on that. There are times when the administration seems to think we should check every weapon that's involved in any kind of an

Page 45.

Grimes - Cross

incident and it's through these particular periods we can actually say that it is actually difficult to get a print of a gun.

Q. So you're saying that the frequency with which you have to come in contact with these weapons depends to a large extent on the policy of the Police Department?

A. Yes, sir.

Q. And when was that policy, the present policy that you're operating under, when was that put in force?

MR. MCGILL: Objection, irrelevant, Your Honor.

THE WITNESS: There is no written --

THE COURT: Just a minute. Can you see me over here?

MR. JACKSON: Sure.

(A side bar conference was held on the record as follows:)

THE COURT: What's the relevancy of this area that you're going into?

MR. JACKSON: Simply because he's indicated he's talked about the number of times

Page 46.

Grimes - Cross

that he's lifted or compared prints from a weapon and he's saying --

THE COURT: I think he means successfully.

MR. JACKSON: Yes, I know he's talking about successfully but it's based on -- obviously that number is based on the number that he comes in contact with so he's saying depending on --

THE COURT: I think he should be clearer. I'm not sure.

MR. JACKSON: Well, how do you know --

THE COURT: It's confusing to me. I don't know what he's talking about. When he's talking about one or two a year does that mean he only examines one or two a year successfully?

MR. JACKSON: Successfully.

THE COURT: Therefore is he examining more than one or two weapons a year?

MR. JACKSON: Yes.

THE COURT: I don't think that's clear.

MR. JACKSON: I'll clarify.

THE COURT: What's your objection?

Page 47.

Grimes - Cross

MR. MCGILL: My objection was that I thought it was beyond the scope -- well the relevancy of this case. I also object to the fact that it's not clear, but I was going to try to clean it up on redirect. I appreciate it being cleaned up now. It's confusing. I hear so many thousands and one or two a year. What does that mean?

THE COURT: I was confused. Let's go from there.

(Side bar conference ended.)

BY MR. JACKSON:

Q. Mr. Grimes, I would like to clarify a few things. You indicated that between the Identification Unit, Mobile Crime Unit and your entire unit there are perhaps one or two successful comparisons a year from latent prints from weapons: is that correct?

A. I don't think it's that high but let's say for -- yes.

Q. And that's an average as well, let's say, for the last five or ten years?

A. That's right.

Q. Now, the number of weapons that come into either

Page 48.

Grimes - Cross

you, the Identification Unit or the Mobile Crime Unit is somewhat dependent upon the policy of the Police Department; is that correct?

A. Yes, sir.

Q. Now those circumstances or under those few circumstances that you claim that you have successfully compared a latent print from a weapon, do you know or can you tell this jury what factors and circumstances make it more susceptible for successful comparisons?

A. No. It's a question of chance.

Q. So then although you may not have successfully been able to lift or compare a latent print from a weapon that doesn't mean that you got no print at all, does it?

A. No.

Q. It simply means or it may simply mean that you did not get enough of a print for identification purposes?

A. That's correct.

Q. The prints that you've just examined -- I'm sorry -- the lifts that you have examined have no ridges on them at all; is that right?

Page 49.

Grimes - Cross

A. That's correct.

Q. Now, there are several portions of the weapon -- by the way, you didn't lift these, did you?

A. No, sir.

Q. And you don't actually know, you're assuming that what's on the card is correct?

A. That's correct.

Q. And all that you are asked to do was to look at the card and see if there was anything from which you could make an identification?

A. That's correct.

Q. And you looked at the card and said, "There's nothing on here, there's nothing to identify?"

A. That's correct.

Q. Nevertheless, sir, if you were to examine a weapon, any one of the weapons, and if you were asked to take a lift, where would be the most obvious place that you -- well, what portion would you dust before making -- let me strike that. If you were asked to attempt to lift prints from a weapon, the 38 Smith & Wesson right: there as an example, what portion of the weapon would, you dust?

Page 50.

Grimes - Cross

A. All the parts, movable surfaces that approximate the size of a finger or half the size of a finger.

Q. So would it be fair to say that you would essentially, particularly since it's a weapon, a revolver, you would essentially dust the entire or every metal portion of the gun except for those little cylinders?

A. Since we're talking about this particular weapon specifically --

Q. Either one.

A. -- this has a hard-smooth surface on the handle, too. It's a polished wooden handle. It's a possibility, or I would say probability, of developing a print of that particular area as well.

Q. Fine. On the handle itself?

A. Yes.

Q. And even if there were no fingerprints you might accept a palm print, at least; isn't that true?

A. No, I wouldn't accept it. No, sir. That's what we're talking about, the frequency of developing an identifiable print.

Q. Isn't that a hard-smooth surface?

A. Yes, sir.

Page 51.

Grimes - Cross

Q. And you're saying that you wouldn't accept it but it would not be unreasonable to find it, would it?

A. It is a possibility, yes.

Q. I understand. It's a possibility that we always have in latent prints; isn't that true?

A. Well, the surface is a surface that it is possible to develop prints along.

Q. Fine. Now again, with regard to that weapon, the other portions of the weapon, aside from the handle where else would you not accept? I'll stop using the word accept. Where else would you search for a latent print?

A. All the middle parts that present a smooth surface.

Q. And on the .38 Smith & Wesson, if you were asked to do that where could you do that and could you?

A. Same thing.

Q. And could you point out to the jury where those surfaces might be?

A. This handle is checkered so that is not a suitable surface.

Page 52.

Grimes - Cross

Q. Could you hold it high or perhaps stand up so the jury members could see?

A. This is a textured surface which may or may not -- I would try it, and all of the metal surfaces. Yes, all the metal surfaces.

Q. And could you point out -- when you're talking about the metal surfaces, that's on the top of the weapon? There's a metal portion right near the handle or the grip of the gun; is that right?

A. Yes.

Q. Could you point that out to the jury members as well?

A. Right here.

Q. What about the weapon itself that the handle or the grips are attached to on the side? Your Honor, may I approach the witness?

MR. MCGILL: For the record, Your Honor, this is C-23 he's talking about.

MR. JACKSON: Oh, I'm sorry. Yes.

MR. McGILL: Again, the weapon is cleared. The weapon is cleared if anyone is concerned what's happening.

MR. JACKSON: I'm sure Mr. Grimes

Page 53.

Grimes - Cross

wouldn't let me point it at him if it weren't.

BY MR. JACKSON:

Q. Mr. Grimes, the handle on the Smith & Wesson, that's not a hard-smooth surface: is that right?

A. It's a wooden, it's a polished wooden surface, yes, that's possible.

Q. On the handle?

A. No.

Q. That's what I'm talking about. Now I'm talking about the Smith & Wesson, the large one. The small one is a Charter Arms.

A. I'm sorry.

Q. The large weapon. On that one the handles are not smooth and not hard?

A. They're checkered and that breaks up the consistency of a print.

Q. Would you use a powder in searching for a fingerprint on that handle, or would you use some other method to develop a potential latent print?

A. On the handle?

Q. Yes, on that particular kind of handle.

A. On the checkered surface it's impossible to develop a print.

Page 54.

Grimes - Cross

Q. Under no circumstances at all?

A. Under no circumstances.

Q. If they're --

A. Let me explain myself, if I may?

Q. Sure, sir.

A. I said I need a series of 9 to 12 characteristics associated in sequence in order to identify a print.

Q. I understand.

A. With a checkered surface there's no way I can get a sequence of characteristics. It gets broken up over the surface.

Q. I understand that but that does not suggest that you couldn't get any print at all, though, does it?

A. It does. If we did examine those things, say that it was handled as opposed to not being handled, that's as far as I could go.

Q. Couldn't you further determine whether it, was an arch, as opposed to a whorl, as opposed to a loop?

A. There's a possibility of going that far, yes.

Q. So that would in fact provide some value, invaluable investigative information, would it not?

A. I doubt it.

Page 55.

Grimes - Cross

Q. Whether a print was loop, or whorl or arch?

A. We're talking about 65 percent of the population.

Q. But it certainly could exclude people. Let me give you this possibility based on your experience. If the suggestion is that Officer Faulkner has a .38 Smith & Wesson, that on each one of his fingers he had all arches, okay, and you search for a latent print on that weapon and you found -- although you didn't find the 9 to 12 characteristics in the proper sequence but you would nevertheless be able to determine that the portion of the print in which you're looking at is a portion of a whorl, or a portion of a loop, that would exclude or that would suggest someone else other than Officer Faulkner handled the weapon: is that true?

A. Yes, that's true.

Q. Fine. Now, with regard to the smaller weapon as well, if you have a handle on it that has a hard surface -- is that correct?

A. That's correct.

Q. So that to the extent that it is more conducive, it would be more conducive than the other handle: is that right?

Page 56.

Grimes - Cross

A. That's correct.

Q. But again the same fact pattern even though you would not have enough points for that comparison, meaning 9 to 12 points of comparison in a proper sequence, you could in certain circumstances determine whether there is an arch, whether there is a whorl or a loop; is that correct?

A. That would be correct.

Q. Now, so that the jury understands, there's basically three major classifications of fingerprint for persons: is that right? Or correct me if I'm wrong.

A. Yes, that's right.

Q. And there are arches, loops and whorls?

A. Right.

Q. So just like we have certain blood tests that don't necessarily say that you're one, blood tests can exclude certain people?

A. True.

Q. Fingerprints, although you may not be able to positively identify someone, you can exclude someone; is that right?

A. Well, there's a possibility of it, yes.

Page 57.

Grimes - Cross

Q. And that would be dependent upon whatever it is that you're able to develop. Is that right?

A. That's correct.

Q. Now I understand that what you're saying is that, well, why develop a print or why go to the trouble of trying to develop a latent print on that soft surface when I wouldn't get enough points for a comparison; is that what you are saying?

A. Well, let me qualify that. The checkered area I'll stick to my -- what I said before that we could not determine even the pattern type. The other area above it is a textured area in which I doubt if we could identify a print but as far as the pattern type, yes it's possible.

Q. And a pattern type would serve to exclude?

A. That's what we're talking about here.

Q. Fine. Now, do you know what the fingerprint pattern is of Officer Faulkner?

A. No, sir.

Q. Do you know what the fingerprint pattern is of Mumia Jamal?

A. No, sir.

Q. It wasn't provided to you?

Page 58.

Grimes - Cross

A. No, sir.

Q. And when you got the latent prints since you saw there was nothing on there, there was no need to even ask for it, I suppose?

A. That's correct.

Q. Now, did you get any latent prints that were taken from -- strike that. The latent prints that you were given, the lifts that you were given, do you know where they were taken from or where they told you they were taken?

A. There's an indication on the card itself, yes, where they're from.

Q. Did you make any additional suggestions as to where they might search for additional latent prints, et cetera, on those weapons or at the scene or --.

A. No, sir. I wasn't familiar with the scene at all, sir. That was not my function.

Q. So whose function and responsibility would that be? Do you know?

A. It's jointly held by the assigned detective and the Mobile Crime Detection Unit.

Q. Now, the assigned detective would take his cues

Page 59.

Grimes - Cross

pretty much from the expert in terms of where to look for prints and things of that sort, would he not?

A. Yes.

Q. Or would he simply ask you guys to do something that you couldn't do anyway?

A. No, it's a discussion type thing as to where.

Q. Did you ever discuss it with the assigned detective?

A. No, sir. I wasn't on the scene.

Q. And you a one man shop pretty much, are you not?

A. That's correct.

Q. Now, the Mobile Crime Lab is usually the organization or the unit that goes to the scene?

A. Correct.

Q. And they are somewhat familiar with -- well, supposedly expert in searching for evidence; is that correct?

A. Yes, sir.

Q. Have you had occasion to visit scenes with the Mobile Crime Unit?

A. I was a member of their unit for 13 years.

Q. I thought so. And the members of that unit have

Page 60.

Grimes - Cross

some familiarity with fingerprints and lifting and things of that sort: is that correct?

A. That's correct.

Q. So they could make some independent decisions as to where to search for evidence; is that correct?

A. Yes, sir.

Q. And indeed if you were at the scene and understood that there were weapons as well as other metal parts and pieces, you would at least suggest that each and every one of those metal pieces be searched for fingerprints, would you not?

A. Not knowing the whole story I have to qualify my answer because it depends on what else they might want those pieces checked for.

Q. Explain that to me.

A. All right. An investigator or the Mobile Crime Lab in evaluating a piece of evidence has to decide what that is to be tested for, and if it's more than one test involved he has to determine which one takes precedence because --

Q. Oh?

A. -- because there's a possibility that that might destroy the value of a second test.

Page 61.

Grimes - Cross

Q. As an example, if there's a metal object you may want to test it for blood and you want to do fingerprints, you may do the blood test first or something like that?

A. Yes, sir.

Q. Fine. I understand that. What if there was a question with regard to who was in a vehicle? Wouldn't you think that searching for fingerprints would be appropriate?

MR. McGILL : Objection, highly speculative.

MR. JACKSON: Your Honor, this man is an expert.

MR. MCGILL: Objection. It's not a --

THE COURT: I sustain the objection.

BY MR. JACKSON:

Q. Did you get any latent prints from a vehicle?

A. No, sir.

Q. Do you know if there were any vehicles at the scene based on the reports that were presented to you?

A. No, sir.

Page 62.

Grimes - Cross

Q. Out of all of the evidence that was seized by the Philadelphia Police Department you got five lifts: is that correct?

A. That's correct.

Q. And on none of those lifts were there any fingerprint patterns at all?

A. No.

Q. On two of them?

A. I didn't say that.

Q. Okay. Tell us.

A. There's a one-quart beer bottle; it indicates it was handled by three fingers; however, there are no ridges at present in that particular pattern and that particular lift. And there's two lifts from a metal can marked Raid, and there are some fragmented ridges on these lifts, not enough to identify them.

Q. So that's two out of three had something that would indicate to you that they were being handled by human hands; is that right?

A. No. There's three.

Q. Three out of five, I'm sorry.

A. Three out of five, yes.

Q. And that's all that you were ever shown, that's

Page 63.

Grimes - Cross

all that you were ever asked to comment on; is that right?

A. That's correct.

Q. Now, based on the record that you have before you, who was it that took these lifts? Was it Mr. Famighietti?

A. No, sir. The metal can and the beer bottle were Roy Land, that's Officer Land, Mobile Crime Unit, and the Firearms was an Officer Eberhardt, number 1788 Mobile Crime Lab.

Q. Do you know Officer Eberhardt?

A. Yes, sir.

Q. Do you know if he's trained in taking latent prints?

A. Yes, sir. I trained him myself.

Q. How long ago was that, sir?

A. Oh, approximately ten, 12 years ago, maybe more.

Q. And Officer Land, he's also trained in fingerprint detection or lifting prints, at least?

A. Yes.

Q. Neither one of them are qualified to take comparisons; is that right?

A. That's correct.

Page 64.

Grimes - Cross

Q. Now, isn't it a fact to some extent the development of a latent print and subsequent lift is somewhat depending upon the ability of the person who's performing the task?

A. That's correct.

Q. So that, do you have any indication -- strike that. You don't know what skill or art was used to lift these prints, do you?

A. I do.

Q. You do?

A. Yes. There's powder involved, there's latent lifting tape, transparent tape.

Q. But I mean you didn't see it applied?

A. No, sir.

Q. You didn't see it lifted?

A. That's correct.

Q. So you don't know whether it was done properly or improperly: is that correct?

A. I would say that the results that are in front of me, I would say it was done properly.

Q. How could you tell, sir?

A. What is there is clearly defined. There is not

Page 65.

Grimes - Cross

enough there to identify it as simple as that.

Q. I understand but you don't know what was done even before the powder was applied?

MR. MCGILL: Objection, repetitious.

MR. JACKSON: It's not repetitious.

THE COURT: Objection sustained.

THE WITNESS: Correct.

MR. JACKSON: I have no further questions, Mr. Grimes. Thank you, sir.

REDIRECT EXAMINATION

BY MR. MCGILL:

Q. Mr. Grimes, you said one or two comparisons a year if you're lucky?

A. That's correct.

Q. How many attempts?

A. Numerous attempts.

Q. Could you give me an estimate of the number of attempts?

A. Individual guns being sent down might be about ten, 15 a year: however, they usually come in groups of maybe 50, 60, at a time.

Q. And in terms of one or two successful comparisons

Page 66.

Grimes - Redirect

to other types of items, how many attempts would you make?

MR. JACKSON: Objection. Comparisons is not appropriate, Your Honor.

MR. McGILL: Successful comparisons.

THE COURT: Go ahead.

MR. MCGILL: Successful comparisons.

THE WITNESS: Other than firearms approximately ten percent of the time.

BY MR. MCGILL:

Q. Now, you indicated in reference or in response to Mr. Jackson's questions -- he's used the words, whorl, loop and arch. A question came up, well, you could exclude people, well, taking an example of a whorl, if you see a certain type of pattern, a whorl, what percent of the population would you exclude?

A. Thirty-five percent would be all -- no, 35 percent of the patterns are whorls. However, the distribution of whorls being mixed in with other types of patterns would be a little bit more than 35 percent of the population.

Q. So in other words, you're saying that whor1s are associated with 35 percent of the population?

Page 67.

Grimes - Redirect

A. Thirty-five percent of the patterns are whorls.

Q. All right. Thirty-five percent of the patterns of the full population?

A. We're talking about ten patterns per person and they're not all whorls, so we can't say they are 35 percent of the population because it's intermingled with a greater number.

Q. What about loops?

A. Loops, 65 percent of the patterns are loops.

Q. What about arches?

A. Arches are very low; that's a five percent factor.

Q. So if we're talking in terms of excluding individuals in terms of population, you're excluding a great number of people because you are talking about a large percentage: is that not accurate?

A. That's correct.

Q. And therefore, you are including a great number of people in a large group?

A. Yes, sir.

Q. And isn't that the reason why you don't really do a job to the extent of a completed nature of whorls and loops and require the full point system?

Page 68.

Grimes - Redirect

A. Plus the fact that its not considered good evidence.

MR. MCGILL: Thank you, sir.

MR. JACKSON: I have a few more questions.

RECROSS-EXAMINATION

BY MR. JACKSON:

Q. Although it's the responsibility of the Police Department to, of course, arrest and convict, or at least give evidence that would serve to convict an individual, the question whether or not to exclude people is not consistent with the objective of the police officer involved: is that correct?

A. No, sir, that's --

MR. MCGILL: Objection.

BY MR. JACKSON:

Q. Let me do it this way: You indicated that 35 percent of the people are whorls, another 60 or 65 percent for loops and another five or so percent for arches. Again, it would be your druthers I'm sure, to be able to find 9 to 12 points in the appropriate sequence for you to make an identification: is that

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right?

A. That's what I mean, yes, sir.

Q. But again, the point is that even though you've had numerous weapons, you've indicated on redirect, many weapons, maybe 50, and they come in groups at a time, you may hot have been able to find an identifiable latent print but at the same time in many of those instances you found ridges or patterns: have you not?

A. Not very often, sir. The problem is that a gun, as I indicated in the beginning of my testimony, that is well taken care of has a coating of oil and nitrate solvent which obliterates all prints. It does not indicate that it was handled even and is impossible to process it because the oil in the body of fluids is what we're after in developing the print. The other aspect, a gun not well cared for and is handled constantly we have what we call a superimposed impression. That is, one print on top of another print on top of another. And even though we might be able to say there are prints on the weapon there's no way we can separate one of those impressions from the next impression.

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Grimes - Recross

Q. Have you ever checked to see in that last category, superimposed prints, have you ever checked that Smith & Wesson for that?

A. No, sir.

Q. Never been asked?

A. No, sir.

Q. So you don't know if in fact -- because if I understand you correctly, Mr. Grimes, you're saying that if in fact it was not taken care to the extent that it should have, a lot of nitrate and oil on that superimposed pattern or print would be there regardless; is that right?

A. It may be there. It may give me a total reaction, too, a constant coating.

Q. And the only way that you could find that out is for you to dust it: is that correct?

A. If that's what you want to find out. But that's not my goal. That is not what I want to find out.

Q. That's not what you want to find out? And you want to find out what, sir?

A. I'm looking, when I do that type of a job, I'm looking for identifiable impressions that I can identify.

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Grimes - Recross

Q. Fine. And you're not looking to exclude anybody?

MR. MCGILL: Objection. May he finish what he's saying?

MR. JACKSON: I'm sorry. I thought you were finished.

THE WITNESS: I was but there is something I can add to it.

MR. JACKSON: No, sir. If you're finished with the answer you have to wait for my next question.

THE WITNESS: Fine.

BY MR. JACKSON:

Q. You're looking for identifiable characteristics, you're not looking to exclude anyone, are you?

A. That's not true, either.

Q. Are you looking to exclude, then?

A. Yes, but not by an incomplete print.

Q. I understand that, sir, but my question is: Again, do you find arches in there, or all whorls of the suspect or the police officer that would exclude their touching the weapon? Is that right or

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Grimes - Recross

not? Let me strike that. If in fact, again, Officer Faulkner's weapon, if he has a pattern -- and I don't know his fingerprint pattern -- but if he has 36, all whorls on his person in every finger and you find loops or arches, or ten arches on the weapon somewhere that would suggest to you that someone else in addition to Officer Faulkner handled the weapon: is that correct?

A. No. sir. Those --

Q. Go on.

A. Those patterns on there could come from a section of the palm as well and without knowing that and without being able to identify it, it's impossible to say whether it's fingering or palm, unless the area shown to me is greater than what a fingering can be.

Q. So that you're saying that no matter what ridges or patterns you can't tell whether it comes from the palm, or finger, or base of the foot?

A. It's possible unless there is something to indicate that.

Q. Well, are there portions -- are you saying, then,

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that the palm or the base of the foot may touch the weapon at some particular point so as to the extent that you would not know whether or not it came from a finger, or from the palm or from the base of the foot?

A. Let's exclude the foot.

Q. Don't exclude the foot, sir.

A Well, that's not the normal way of handling a gun.

Q. I understand that.

A. But let's say the palm. The palm does have those types of characteristics and those types of formation on the palm, and without knowing or having anything that would indicate the size, area, and so forth is impossible to tell. That's why it is a question of ethics that we do not go with a partial print under any circumstances.

Q. For a positive identification?

A. That's correct.

MR. MCGILL: Objection. It's getting now to be argumentative.

BY MR. JACKSON:

Q. Sir; I understand what you're saying about

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positive identification and I accept what you're is saying with no problem. I'm talking about to the extent that you can at least identify a pattern or a portion of a pattern, you can do that without having, that 9 to 12 points in that sequence? Is that not true?

A. Yes, it is.

MR. MCGILL: Objection. He has. --

BY MR. JACKSON:

Q. Why is it unethical?

MR. MCGILL: Objection to what he means by ethical.

BY MR. JACKSON:

Q. Why is it unethical? Why is it unethical?

A. Unethical in that by having an incomplete print it could be more than one person.

MR. JACKSON: Thank you, Mr. Grimes.

MR. McGill: Thank you. Your Honor, may we have a short recess?

- - - -

(Witness excused.)

- - - -

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(A short recess was taken.)

MR. MCGILL: May I proceed, "Your Honor?

THE COURT: Yes, please.

MR. MCGILL: Mr. Larry Paul.

- - - -

ANTHONY L. PAUL (Supervisor Firearms Identification Unit, Philadelphia Police Department), having been duly sworn, was examined and testified as follows:

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Yes.

BY MR. MCGILL:

Q. Mr. Paul, where are you currently employed?

A. City of Philadelphia Police Department.

Q. And what is your position?

A. Supervisor of the Firearms Identification Unit in the Laboratory Division.

Q. Now Mr. Paul, would you tell the jury, please, your qualifications for that position?

A. Yes. In 1961 I became a police officer with the City of Philadelphia where I successfully completed

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all of my subject matter at the Police Training Academy. I then worked as a police officer, uniform capacity, until 1970 when at that time I became a member of the Laboratory Division as a uniformed police officer.

Now, when I was assigned to the Laboratory I began my training under the supervision of Mr. Howard Montgomery and other members of the Laboratory Division.

My training included the laboratory identification of firearms, of projectiles, of fired cartridge cases and related items. Also serial number restoration, and at that time I was charged with reading the texts that are related to that subject.

I have attended seminars sponsored by United States Army Ordinance in Frankford Arsenal, Philadelphia. The seminar continued to Aberdeen Proving Grounds in Aberdeen, Maryland.

I have been to the Winchester Firearms Manufacturing Company in New Haven, Connecticut.

I have been to the New Jersey State Police Ballistics Laboratory in Trenton, New Jersey

PLEASE NOTE: The page number changes from 76 to 79, however the content is continuous. There appears to have been a typographical error by the stenographer.

Page 79.

and their Pine Tree Casting Plant in Newport, New Hampshire, and that was to observe and study manufacturing techniques and processes.

I have completed firearms investigation cases in Forensic Ballistics for the Federal Bureau of Investigation for the United States Treasury for Bucks County, Chester County, Delaware County, all the surrounding counties in our area, in our Delaware Valley section.

I have completed the following cases: In 1970 I completed 280 firearms cases, in 1971, 405 firearms cases, in 1972 442 cases, in 1973, 391 cases, in 1974, 429 cases. Now there was approximately 15 microscopic comparative examinations that had to be conducted for each case that was completed. That would give me approximately 29,200 microscopic examinations that I have personally completed.

Now since my appointment as supervisor in 1974 I am no longer able to maintain the status because now I review all of the work that's completed in our section. My job now as supervisor is strictly a working supervisor or in that I am

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responsible for supervising and participating in the examinations and the identifications that are effected in our laboratory. I assign, the work and review the work and now I do the memoranda and so forth. Thank you.

Q. Mr. Paul, how many microscopic comparative examinations of evidence, fired cartridge cases, as well as projectiles have you made as a supervisor? If you can estimate.

A. At least another 30,000.

Q. All right.

A. At least.

MR. MCGILL: Cross-examine on qualifications.

BY MR. JACKSON:

Q. Good afternoon, Mr. Paul.

A. Yes, sir. Good afternoon, sir.

Q. Sir, have you published anything in any journals, any publications?

A. Unfortunately no, sir, I have not.

Q. Now Mr. Paul, are you familiar with the, I guess The Statistical Predictors of -- let me do it this way: You have empirical evidence in fingerprints

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that enough empirical information about fingerprints to come to the conclusion that indeed there are no two fingerprints alike? Would you agree with that?

MR. MCGILL: I would have to object to this. I am not objecting to it as cross-examination but as cross-examination of qualifications.

MR. JACKSON: Your Honor, I assure you it relates to the qualifications.

MR. MCGILL: All right.

MR. JACKSON: If you will allow me, Your Honor?

BY MR. JACKSON:

Q. To the extent that there is enough empirical evidence to say in fact that there are no two fingerprints alike, would you say we have a similar amount or enough empirical evidence to say that there are no two bullets fired by the same weapon?

MR. MCGILL: I would have to object, Your Honor. That's not qualifications. That has to do with the substance of his testimony.

MR. JACKSON: Your Honor, it doesn't go to the substance. It goes to whether or not --

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THE COURT: You're not here to give him a test.

MR. JACKSON: No, sir.

THE COURT: That's what you're doing.

MR. JACKSON: I'm just testing his qualifications to do it.

THE COURT: Not that way, please. That you can ask after he's been accepted by the Court.

BY MR. JACKSON:

Q. Let me ask you this: Are you familiar with the Crime Laboratory Proficiency Test and Research Program?

A. Somewhat, vaguely I'm familiar with it.

Q. Philadelphia was a participant in this: is that correct?

A. Yes, that's correct.

Q. Now, I believe this was conducted, at least it was published in 1978, so would it be fair to say that you were working for the Police Department at that time?

A. Yes, sir.

Q. And are you familiar with the findings of this

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Crime Laboratory Proficiency Test and Research Program?

A. Yes, sir.

MR. MCGILL: I would have to object to that, Your Honor, as qualifications.

MR. JACKSON: It goes to his qualifications, Your Honor, because it's --

THE COURT: Let me see you over here.

(A side bar conference was held on the record as follows:)

MR. JACKSON: I'm simply trying to find out to the extent of what the extent of his knowledge and expertise is. If he's familiar with Ballistics and things of that sort. What I'm asking are things that are directly related to Ballistics.

THE COURT: What's this got to do with this?

MR. JACKSON: Pardon me?

THE COURT: He's been accepted as an expert in Common Pleas Court numerous times. He's been in my courtroom numerous times.

MR. JACKSON: Your Honor, I think

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that --

MR. MCGILL: Judge, I have no objection to his questioning his qualifications but these more go to the substance of what he will testify to, such as, "Are you familiar with certain tests and what they mean, certain results," and so forth and so on.

Questions like, "Have you read anything or have you submitted articles," obviously are competent questions on cross-examination as to qualifications, but not familiar with this particular journal.

THE COURT: Or this process.

MR. JACKSON: Judge --

MR. MCGILL: I mean if he's familiar with a process, microscopic examination, that's fine. If he's talking about a test or something that would not be part of qualifications that's improper.

MR. JACKSON: Judge, the only way that I can later on cross-examine him with regard to a test or examination or anything is to find out in advance what he's familiar with.

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THE COURT: You do that when you go to cross-examination. He's been accepted as an expert and he testifies and on cross-examination you can bring out these different other tests.

MR. JACKSON: I don't have any problems doing it if Your Honor is going to let me. I thought the best way to do it is in advance.

THE COURT: That has nothing to do with qualifications.

MR. MCGILL: What is that one book you're looking at?

MR. JACKSON: That's one book, that's the only book. There are a couple of other tests I want to find out if he's familiar with. That's the only book.

THE COURT: You can do that during your normal cross-examination.

MR. MCGILL: Sure.

THE COURT: Nothing wrong with that.

MR. MCGILL: I have no objection to that.

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THE COURT: Then you're testing his ability to be able to speak as an expert.

MR. JACKSON: Sure.

THE COURT: But now we're talking merely if he's an expert. And he has been accepted as an expert numerous times. He's been in Federal Court and I know that as a fact.

MR. JACKSON: Yes, Judge. The only problem is if I wanted to cross-examine him on XYZ Test --

THE COURT: If he made a certain test, okay, and you want to cross-examine whether or not this other test would be better than the test that he used, fine. There's nothing wrong with that.

MR. JACKSON: Fine.

THE COURT: Okay.

MR. JACKSON: Very well.

(Side bar conference ended.)

BY MR.JACKSON:

Q. We've established, sir, that you are familiar somewhat with the Crime Laboratory Proficiency Test

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and Research Program; is that right?

A. Yes, sir.

Q. Are you familiar with Trace Metal Detection Test?

A. No, sir.

Q. Not at all?

A. No.

Q. Anyone in your unit that is?

A. No, sir. That would be the Criminalistics Section.

Q. Criminalistics?

A. Yes, sir.

Q. And you're familiar with, I think it's called, the Walker Test or Grice Test?

A. I went to school then to FBI for that, sir.

Q. So you're familiar in your --

A. I went to school for it but in our section we don't apply the Walker or the Grice Test at all. Again, we leave that to the Criminalistics Section. We do more in analysis for distance determination, that sort of thing. We will do that but that's not to establish the presence of leads or nitrates or nitrites.

Q. That's Criminalistics?

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A. That's correct.

Q. I just want to understand the scope of your expertise, that's all, sir.

A. That's all right.

Q. And the Neutron Activation Test, that's also done by Criminalistics?

A. That's correct, sir. I believe that's sent out of the department.

Q. To the FBI?

A. That's correct.

Q. But the test is conducted by Philadelphia Police, but it's analyzed by the FBI?

A. That's correct, sir.

MR: JACKSON: Fine. Thank you. I have no further questions as to his qualifications at this time, Your Honor.

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Go ahead.

DIRECT EXAMINATION

BY MR. MCGILL:

Q. Did you have occasion to supervise the

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examination and comparisons done in this particular case, the case of Commonwealth versus Mumia Abu-Jamal?

A. Yes, sir.

Q. Do you have a report with those particular findings?

A. Yes, sir, I have.

MR. MCGILL: I would ask, please if the following exhibits could be placed before Mr. Paul, C-22, C-23 also C-39, C-40, 41 and 44. May I approach the -- I ask that this be marked C-44, that's C-43. I'll ask that this be marked C-44 and shown to defense counsel. That's the fragments.

MR. JACKSON: Fine, thank you.

MR. MCGILL: And C-37. And with C-39 if you could put the document C-40 and 41 with C-37, the document C-38. All right. Document C-40 and 41 with C-39, and C-37 with C-38 document.

I would ask you, if you would, Mr. Paul, to take a look at all of those exhibits, first C-22 and C-23, the revolvers and the associated envelopes. Also I ask you to take

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a look at C-37 and C-38, C-38 the document, C-37 the vial. And also C-39 and the documents 40 and 41. Finally, C-44.

MR. JACKSON: Your Honor, may I consult with Mr. McGill for one moment?

(A discussion was held off the record.)

MR. JACKSON: Thank you, Your Honor.

BY MR. McGILL:

Q. Have you examined them all?

A. Yes, sir, I have.

Q. First of all, can you identify C-22 and C-23?

A. Yes, sir.

Q. They are the two weapons. Would you take a look at C-23?

A. Commonwealth Exhibit C-23 is a Smith & Wesson revolver. It's a Model 10 with a 4-inch barrel, caliber .38 Special, blued steel, serial number D792117, and that number is engraved or imprinted to the frame of the firearm.

Q. Did you examine that weapon?

A. Yes, sir, I did.

Q. Did you determine anything with reference to

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powder fouling and dirt?

A. Yes, sir. The examination of the firearm disclosed that powder fouling and dirt was in the barrel and one chamber of the firearm with powder fouling, dirt and lint in the remaining chambers. There is a note that the hammer spur is bent. The hammer spur of the firearm would be the portion of the firearm that would be used to manually cock the gun in order to discharge it. It would be the hammer spur.

Q. All right. In reference to the envelope that's associated with that particular weapon, could you tell us what you determined from that envelope?

A. Yes, sir.

Q. What is that?

A. This is a manila envelope containing the ammunition that was associated with that, Commonwealth. Exhibit 23, and that contains five cartridges, caliber 38 Special, manufactured by Remington and it is City-police type issue ammunition. There is contained in the envelope one fired cartridge case and that, again, is Remington Manufacturer, caliber .38 Special, and a microscopic examination showed that fired

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cartridge was fired in Commonwealth Exhibit 23.

Q. How were you able to determine that?

A. Taking a test specimen from the subject revolver and then comparing the test specimen that was fired in that revolver against the evidence specimen that was submitted with the revolver on our forensic comparison microscope.

Q. What is the significance of -- and you have your report there, I believe?

A. I have, sir.

MR. MCGILL: Mr. Jackson, you also have a copy of the report?

MR. JACKSON : Yes, I do.

BY MR. MCGILL:

Q. Now Mr. Paul, what is the significance of the wording examination disclosed powder fouling and dirt in barrel in one chamber?

A. It indicates that the firearm had one chamber of the cylinder that had been discharged and not clean, which was a nitrocellulose residue of burnt gun powder in that chamber area. It's very pronounced in that one chamber area. By design of the arm the design prohibits large amounts of that residue to go

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into any of the adjoining chambers. Obviously microscopically we will find particles partially burnt, unburnt particles of gun powder in the other chambers but not to that degree. So that discloses to the examiner that it was just one chamber that was fired in that gun.

Q. Now, I believe you already said it but I'll ask you specifically. Did you determine whether or not the revolver, that Exhibit C-23, is operable?

A. Yes. It was determined that the arm is operable. We found one problem -- I assure you all that this firearm is indeed unloaded. We found that the arm, because of the cracked hammer spur, the bent hammer spur could not be fired in single-action phase of shooting.

Q. Would you explain what single-action and double-action means?

A. Certainly I will. To fire an arm there are two ways to discharge this particular revolver: one is that when you grasp the revolver that you pull the pressure on the trigger, that pressure on the trigger compresses the main spring, it cams an action around causing the cylinder to revolve bringing a fresh

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cartridge to chambers.

When you reach the end of that compression you then get a fall-off from the camming action of the trigger against the action of the hammer under tension of the main spring and it allows the hammer to fall with sufficient force to designate the cartridge causing the gun to discharge. That is one system of shooting a firearm of this type.

The second would be to cock the gun manually. You are causing all of the same things to occur but what you are doing is that you're manually pulling this hammer.

Now with this firearm we found in a laboratory under normal pressure it will not cock. You have to apply severe pressure to the back of the hammer because of that bend, and it will cock, it will hold. But it's not supposed to be in that particular fashion. And then to discharge that arm now you apply light pressure to the trigger and it will discharge.

So we found this to be a malfunction with the single-action phase of shooting. And microscopically when you examine this spur you find that

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there is no dirt in that crack: that crack is very, very clean, which would lead the examiner to believe that that crack had occurred at the time of the incident and not two months prior or a month prior or a week prior. Because just because of the appearance of that crack that was at the top of the hammer spur.

Q. On that point, is that particular result which you have raised as a hammer spur being bent, is that consistent with the result of perhaps that weapon being dropped and hitting the ground?

A. It could be, yes.

Q. However, as I understand what you've said, as far as double-action is concerned -- which means no cocking, just means you pull the trigger -- you don't worry about cocking it with your thumb, right?

A. That's correct.

Q. You just pull the trigger. That does not affect your ability to pull the trigger on a double- action; is that correct?

A. Absolutely. No affect on it whatsoever.

Q. So you could fire that on double-action?

A. Sure.

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Q. Without a problem?

A. That's right.

Q. Would you take a look at C-22, please, the other revolver? Would you tell the jury, please, what that revolver is, what you found about that revolver and also the contents of the envelope associate with it?

A. Okay. That's a .38 caliber also. It is Charter Arms revolver, different manufacturer than the other revolver. It has a shorter barrel, 2-inch barrel, the firing capabilities are the same. It carries its chamber for a .38 Special cartridge. It is blued metal, serial number is 510293. The one difference is that because of the nature of the smaller revolver being a model undercover it is chambered for a five-cartridge. The other firearm is chambered for six. This one is chambered for five cartridges.

This was submitted on Property Receipt Number 854912. Examination disclosed powder fouling and dirt in the barrel and five chambers of the cylinder, which means that that residue was present in all five chambers of the cylinder of this particular firearm. The cylinder being that portion

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of the gun that contains the cartridges that are going to be fired or that have been fired.

Q. Now, you mentioned the powder fouling and dirt were in all five chambers. Is that the same type of powder fouling and dirt that you said was in the one chamber of C-23?

A. Yes, that's correct.

Q. Okay.

A. Essentially it's the same, nitrocellulose residue. Now, with this was also submitted one Smith & Wesson fired cartridge case, caliber .38 Special and four Federal fired cartridge cases caliber .38 Special.

Now, they were lead stamped with a Plus P designation. The Plus P designation on the lead stamp by the manufacturer indicates that the manufacturer had loaded that ammunition with a little greater, a little more gun powder, and what it did is to create more pressure far more velocity for the cartridges. So that when this ammunition was discharged in the firearm it would create approximately 21,000 pounds of pressure in the chamber driving the projectile forward with greater force. And the City issued ammunition would discharge at approximately

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16,000 pounds of pressure driving that projectile forward through the barrel with less force.

Now all of that is offset because the Plus P ammunition was placed in a revolver with a shorter barrel, which means that all of that gun powder that was in that cartridge did not have that much time to burn. So some of the gun powder was wasted.

Q. Now Mr. Paul, if I could interrupt you there.

A. I'm sorry.

Q. The difference between the regular, if I use my word, regular ammunition and Plus P ammunition in that barrel, in that 2-inch barrel, what would be the effect in that gun, that gun which you have in your hand now, of Plus P cartridges in relation to the regular type of cartridge in that barrel?

MR. JACKSON: Objection.

MR. MCGILL: In terms of velocity.

MR. JACKSON: Objection as to regular and irregular. There's been no establishment that that bullet is irregular or anything like that. I think that the characterization is improper.

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THE COURT: Use some other terminology.

MR. JACKSON: It's improper.

BY MR. MCGILL:

Q. The standard type of ammunition for that particular weapon that you have in your hand, what standard type of ammunition would that be?

A. That would take the same ammunition that the City issues: it would be standard velocity, .38 Special cartridge that would give approximately 16,000 pounds of chamber pressure, and it would drive the projectile forward through the barrel at approximately 700 feet a second.

Q. Okay. Now my question is: Considering the standard type of ammunition for that weapon, if you take the standard type of ammunition in comparison to the Plus P ammunition for that weapon --

A. Yes?

Q. -- what would the effect be in terms of velocity and impact?

A. Okay. Instead of going 700 feet a second from the muzzle of the 2-inch barrel with standard velocity and ammunition, if you use Plus P ammunition you would gain about 200 to 300 feet a second so that

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it would move approximately 900 feet a second because it does have that greater power.

Q. Would it then be fair to say, sir, in your conclusion that Plus P in comparison to standard ammunition for that weapon would tend to have, because of the powder, a deeper penetration when fired from that weapon?

A. Yes, that's fair.

Q. All right. By the way, there was no Plus P's in the police officer's weapon, were there?

A. No. It was all City issued ammunition.

Q. Would you take a look at C-37 and C-38?

A. Exhibit C-37 is a .38 caliber projectile contained in a plastic vial that was submitted to our laboratory on Property Receipt 854921.

Q. Now, would you describe what that bullet specimen is?

A. That is a .38 caliber bullet weighing 151.5 grains bearing two knurled cannelures, one smooth cannelure. Cannelures are the little irregular designs going around the circumference surface used by the manufacturer to contain a lubricant for the projectile. The nose area and circumference surface

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are flattened, mutilated and mushroomed, distorted bearing numerous foreign markings destroying the major portion of the rifling markings; the base edge is distorted out of round.

The general rifling characteristics are five lands and five grooves with a right-hand direction of twist.

Now the general rifling characteristics are the engravings or impressions of the rifling that has been placed by the manufacturer to the inner surface of the barrel of the firearm. The rifling inside of the firearm is placed so as to stabilize the projectile in flight and lend to the firearm accuracy. That's the only reason that manufacturer put rifling in there. And as you would look down the barrel of the firearm, you would view helical or spiral grooves cut to the inner surface of that firearm.

Now, as a projectile is fired, the projectile has a sliding impression of that barrel and it takes a perfect negative of the inner surface of the barrel. When you view the evidence microscopically against a test specimen, you then see very,

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very distinct repetitive markings known as striations that are individual characteristic markings within the general rifling characteristics.

Q. What did you do with that particular bullet, that Exhibit C-37?

A. Exhibit C-37 was first of all identified as having five lands and grooves with a right-hand direction of twist --

MR. JACKSON: I'm sorry. I couldn't hear you, sir.

THE WITNESS: Was identified as having five lands and grooves with a right hand direction. It was then compared against a test specimen from Commonwealth Exhibit 23 being the Smithe & Wesson City-owned firearm.

BY MR. McGILL:

Q. What were the results?

A. The result of the microscopic comparison show that Commonwealth Exhibit 37 was fired from Commonwealth Exhibit 23, or that bullet was fired from the City owned gun.

Q. Now, would you lift that City owned gun, C-23,

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up?

A. This would be the revolver that fired Commonwealth Exhibit 37.

Q. And also C-31.

A. And C-37 is the .38 caliber bullet specimen.

Q. The ammunition that you have indicated was fired from C-23, .38 caliber; is that correct?

A. That's correct, Sir.

Q. And of course the weapon itself was .38 as is that particular Exhibit C-31. Now, would you tell the jury how you can tell if everything is .38? There are an awful lot of 38's in the world and there's an awful lot of 38 ammunition. Tell this jury how you can tell that that specific bullet that you saw and that you have shown them, C-31, was actually shot from one specific unique weapon, that one which you have in this courtroom. Explain to that jury, if you would, please.

A. First, when the bullet itself was examined it is reflected in our Firearms Unit Report that it was .38/.357 because in the beginning of the examination the diameters of the projectiles are the same. Manufacturers interchange .38 caliber

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bullets with .357 bullets routinely so that the bullet itself could have been either. But to determine now what caliber firearm discharged it and which firearm within that realm we'll now discuss.

The manufacturer when he is drilling the bore of the firearm cuts into that firearm the rifling, and in the case of Smith & Wesson he cuts five lands and five grooves with a right-hand direction of twist. The lands would look very much like the parapets on the old-time Medieval castles. Consider those in a circular fashion in the inner surface of barrel.

The grooves are exactly what they are, they are depressions between the parapets or between the lands in the barrel.

Now when the manufacturer is cutting this steel he's using a piece of steel to cut the steel. Since the tool steel that's used in the manufacture or the ordinance steel that's used in the manufacture of this gun barrel is not totally homogeneous it will have harder areas and softer areas throughout it. The tool steel, the tool that's used

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to cut also will have harder areas and softer areas in it. So that now as the instrument is used to cut it will cut very cleanly and smoothly in one area of that steel.

It will have a tendency to maybe dull or shatter in another section. It may suffer a nick or a small depression in another area. And all of these imperfections and all of these irregularities that are cut time after time after time cause individual accidental markings to the inside surface of that barrel. Those individual markings are as unique to that gun as your own fingerprints are to you.

Now, when that firearm is discharged and we take a perfect negative of the inner surface of that barrel we then have a bullet that is unique and individual to that firearm only.

Q. How do you then go about determining whether the test, or excuse me, whether the evidence bullet in fact was fired from that weapon? What method do you use?

A. Armed with the evidence recovered from the body or from the scene we will then load the questioned

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firearm with ammunition of the same type and design, same caliber and discharge it into a recovery system. We will then remove the test specimens that have been discharged and compare them microscopically on a microscope that is designed specifically for this type of work.

It is a comparison microscope. This microscope has a binocular head which is very much like locking through a pair of binoculars, very much like. it. There's a left and right ocular, and you look through it just like binoculars. It has an optical bridge that moves your vision to the left and to the right, crosses optical bridge and down through the objective lenses to the specimen that you are examining.

You place a specimen on the left side of the microscope and you place the questioned specimen on the other side of the microscope being physically approximately 18 inches apart. Optically you bring them together and you overlay them on the optical bridge or the microscope itself. When you view these accidental markings or these striations that go across your field of view in harmony with

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each other you then have enough for a conclusive comparison.

You then go to another land and groove area and you compare that again. And that is the basis for the microscopic analysis.

Q. Now Mr. Paul, will you take a look at C-39 and also take a look at C-22, the Charter Arms revolver.

A. Exhibit C-39 is a manila envelope marked "Faulkner, Daniel, 6236 Harley Avenue, content bullet."

Q. Now what I would ask you is, did you make an attempt to compare that particular projectile to any weapon and what results did you get. Before you answer that question I'll ask one other question that really is in reference to the other bullet.

You mentioned that was a microscopic comparative examination and what was the total number of microscopic examinations you've taken, actually made or supervised in connection with evidence bullets to weapons.

A. In excess of 50,000.

Q. Fifty thousand was that?

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A. Yes.

Q. Okay. All right. Would you now answer that question that I just asked you in reference to C-39 and C-22?

A. Exhibit C-39 suffered a great deal of damage and a great deal of mutilation. It was not possible to identify this with a specific firearm. It is caliber .38. It is severely mutilated, marked uncoated lead hollow base, caliber .38/.357 -- that I explained previously -- bearing a portion of a smooth cannelure, weighing 138.7 grains, nose area and circumference surface extremely mutilated and distorted, gouged, bearing numerous foreign markings, destroying the major portion of the rifling markings: base edge distorted and mutilated.

General rifling characteristics indeterminable with a right-hand direction of twist, which means that there were insufficient markings remaining on the surface to be able to determine even the total general rifling characteristics.

There was only sufficient legible or readable markings to say that it had a right-hand direction of twist. That's all.

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Q. Now, the rifling characteristics, are they consistent with characteristics of either of those -- well, specifically of the Charter Arms revolver?

A. Yes.

Q. Which is C--

A. Yes.

Q. All right. At least let me get one thing straight for myself: There is no way that you can make any comparison of that bullet because it was just too cut up?

A. That's correct.

Q. Mutilated. So that's where we're starting so there's no definite match up just like you made in the other bullet in the other revolver?

A. Yes. Absolutely not.

Q. So then it would be impossible not only to trace it to one gun but it perhaps could be the type of gun. How about, or is it proper to say or is it possible and consistent to say that that was fired from a .38?

MR. JACKSON: Objection as to possibilities, Your Honor. Your Honor, I withdraw the objection.

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MR. MCGILL: What do you mean?

MR. JACKSON: I withdraw the objection.

MR. MCGILL: You may answer the question, then.

THE WITNESS: It's possible to say that it was fired from a revolver with that type of rifling, with the Charter Arms type of rifling.

BY MR. MCGILL:

Q. But it's also, of course, possible that it could be fired from another one, too?

A. Emphatically.

Q. There's no way simply of telling? It's too cut up?

A. That's right.

Q. Hollow base, the bullet specimen was hollow base, what's that mean?

A. Hollow base bullet specimen was designed configurations placed by Federal Manufacturer, that manufacturer of the bullet in the hopes to achieve a more perfect projectile for accuracy and for power and so forth. It has no significance other

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than that.

Q. But that is at least a component of Federal --

A. Yes, that's correct, sir.

Q. And are some of those cartridge cases that you have there that were fired that are in the envelope associated with the firearms revolver, C-22, are they also Federal fired cases?

A. Yes.

Q. But other than that that's about all you can do with that bullet then?

A. Yes.

Q. All right. Did you drop something?

A. Yes, I dropped a cartridge case earlier.

Q. Would you take a look at C-44. When you do that I'll refer you to your report, number 3, Property Receipt Number 850629.

A. Commonwealth Exhibit 44 is a manila envelope containing four white envelopes marked "City of Philadelphia". Those envelopes are further marked one through four.

Envelope number 1 containing a copper jacket. That jacket is used or was used to contain the lead projectile so that you would have

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the lead projectile inside of this cup or jacket made of copper.

Envelope number two contains a flattened bullet specimen, again, identified as caliber .38/.357 bearing a portion of one knurled cannelure weighing 151.3 grains, nose area and circumference extremely flattened, gouged, mutilated, distorted, bearing numerous foreign markings destroying the rifling characteristics. It was not identifiable and that is the remains of that projectile.

Envelope number three contains lead fragments. The lead fragments are unidentifiable.

Q. Okay now, Mr. Paul.

A. Envelope number four --

Q. I'm rushing you there.

A. -- again contains a lead fragment and that also is unidentifiable.

Q. Yes, sir. Would you tell us what the difference between a specimen and a fragment is, a bullet specimen and a fragment?

A. We break evidence down to identify the difference or to distinguish the difference between a bullet fragment, a bullet specimen. A lead

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fragment is a fragment that has or bears no rifling or similar characteristic markings. It could be a piece of lead, just a lead fragment, from a projectile. A bullet fragment would have some basis or have some bearing of being part of a projectile. It would have a part of a land or a groove, part of knurled cannelure, something other than just a fact that it isn't lead. A bullet specimen, of course, is a projectile that would be almost in its entirety that you can distinguish that specimen clearly.

Q. All right. Now, these were submitted by whom?

A. Specimens were submitted to our laboratory by Officer Land, number 9894 of Mobile Crime Detection Unit on December 9, 1981 at 10:41 a.m. on Property Receipt Number 850629.

Q. Now Mr. Paul, you also stated that all of those specimens, jacket and fragments, they're all unsuitable for comparison purposes?

A. That's correct, sir.

Q. Is that what you meant when you used the word unable to be identified?

A. Yes, that's correct, sir.

Q. In reference to item 2 which is your item 2, is

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there an indication as to whether or not that specimen was hollow base?

A. Yes. That was a hollow base specimen.

Q. Uncoated lead hollow base?

A. That's correct, sir.

Q. The fragment on item 4 indicates the weight as 39.4 grains?

A. That's correct.

Q. What significance, if any, is the fact of that small amount of weight?

A. Just that it is a very small portion of the entire projectile and that the projectile did strike a surface with sufficient force so as to cause it to just fragment into such small pieces.

Q. And also, Mr. Paul, is it true that as a projectile will go at a target and perhaps through a target that the particular projectile while it is dividing into fragments may well lose grains and therefore weight?

A. Oh, yes. Yes.

Q. So would it be accurate or is it consistent with this sort of weight that's lifted, 39.4, or a low amount of weight that a projectile could have gone

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through a target, left grains in a portion of the target, continued its way through the target, hitting something else, fragmenting and losing grain along the way?

A. Yes.

MR. JACKSON: Objection. Well, he's answered it now.

MR. McGILL: Thank you. Your Honor, It's five after one. Perhaps the jury would want to --

THE COURT: Recess for lunch? We'll recess for lunch till 2:30.

- - - -

(A luncheon recess was taken until 2:30 o'clock p.m.)

- - - -

Page 116.

AFTERNOON SESSION

(Court reconvened at 2:45 o'clock P.M.)

- - - -

(The following took place in open court in the presence of the jury:)

THE DEFENDANT: Judge, there's an issue I would like to raise.

THE COURT: Take the jury out.

THE DEFENDANT: I say they can stay if the Judge wishes. What I have to say is very brief.

(The following took place in open court out of the presence of the jury:)

THE COURT: Mr. Jackson, you have something you are going to call to my attention?

THE DEFENDANT: Judge --

MR. JACKSON: I don't, Your Honor.

THE DEFENDANT: Judge, I'm addressing you, not Mr. Jackson, and the issue is, again, that Mr. Jackson has been appointed by Court to represent me. I do not wish to have him represent me. I brought this to you consistently--

Page 117.

THE COURT: I know that. This must be the tenth time.

THE DEFENDANT: Judge, I'm not counting the times but apparently it's not --

THE COURT: I know it's a lot of times, I know.

THE DEFENDANT: Obviously that's very true and apparently it's still creating a problem with you.

THE COURT: Not with me at all.

THE DEFENDANT: It's creating a problem with me, it's creating quite a problem with me. Mr. Jackson is not whom I want assisting me representing me.

THE COURT: You told me that time and time again. I told you before I ruled on that and that is it. Now we're proceeding with the trial. Will you please --

THE DEFENDANT: Judge --

THE COURT: -- sit down and be quiet?

THE DEFENDANT: I would like to place

Page 118.

it on the record that he is not representing me. I would like to have John Africa represent me.

THE COURT: I know. It's there on the record numerous times. You don't have to put it in again. Will you please sit down so we can proceed with the trial?

THE DEFENDANT: Judge, can we proceed with John Africa? Is that at all possible?

THE COURT: No, it's not possible at all.

THE DEFENDANT: Can we proceed with the assistance of John Africa?

THE COURT: No, we can't.

THE DEFENDANT: Why is his participation expressly denied?

THE COURT: Mr. Jamal, I'm not going to sit here and argue with you time and time.

THE DEFENDANT: Judge, I'm not asking to argue with you.

THE: COURT: I've already ruled on I that.

Page 119.

THE DEFENDANT: I understand that, Judge.

THE COURT: The Supreme Court has ruled on that issue, and that is it.

THE DEFENDANT: I understand. I would like it to be appealed and that's --

THE COURT: Well, you talk to your attorney.

THE DEFENDANT: He is not my attorney. He's your attorney if he's been appointed by the Court.

THE COURT: You do what you have to do.

THE DEFENDANT: I'm not a lawyer.

THE COURT: That's exactly it.

THE DEFENDANT: That's why I've been sharing the issue with you.

THE COURT: That's what I've been telling you all along.

THE DEFENDANT: I know that. I have no problem with that.

THE COURT: I'm not here to raise issues with you.

Page 120.

THE DEFENDANT: You are not raising the issue, Judge. I'm raising the issue.

THE COURT: Mr. Jamal, I've gone over this with you endlessly. You've been ruled on. I am not going over it again with you.

THE DEFENDANT: Just because I have been ruled on doesn't mean it's to my satisfaction, Judge.

THE COURT: Mr. Jamal, unless you sit down so we can proceed with this trial you're going to have to be removed again.

THE DEFENDANT: Judge --

THE COURT: You're disrupting the orderly proceedings of this court.

THE DEFENDANT: This is an obstruction or destruction.

THE COURT: Yes, it is.

THE DEFENDANT: It's a point, very serious point, for me. I am fighting for my life. That's why I want John Africa here.

THE COURT: It's been ruled on.

THE DEFENDANT: I understand but not

Page 121.

to my satisfaction.

THE COURT: By the Supreme Court.

THE DEFENDANT: Not to my satisfaction.

THE COURT: I can't help it if you're not satisfied with it.

THE DEFENDANT: If I'm not satisfied with counsel representing my life, my interests, are you to choose counsel for me now?

THE COURT: That's already been ruled upon by myself and by the Supreme Court.

THE DEFENDANT: Can it be appealed to a Federal District Court Judge?

THE COURT: You ask Mr. Jackson. I don't care where it goes.

THE DEFENDANT: You say you don't care? I do know that process. That's why --

THE COURT: Well, I'm not here to instruct you on the process.

THE DEFENDANT: I haven't asked you to instruct me on the process. I want you to --

THE COURT: That's why --

THE DEFENDANT: Yes, it can be I appealed.

Page 122.

THE COURT: That's why you have Mr. Jackson.

THE DEFENDANT: You've got him here.

THE COURT: No, you've got him.

THE DEFENDANT: He wants to withdraw.

THE COURT: As I told you before, if you want to know anything about the law ask Mr. Jackson.

THE DEFENDANT: I'm not asking any questions about the law, Judge. What I am asking is that I be able to appeal the decision of my right to represent myself in this case where my life is on the line.

THE COURT: You ask Mr. Jackson that question.

THE DEFENDANT: I'm asking you, Judge. Why should I ask you and then ask him? I suppose I'm to ask McGill, too?

THE COURT: I am not here to answer questions for you. Will you please sit down?

THE DEFENDANT: It's not a question I'm asking, Judge. It's an issue that I want addressed.

Page 123.

THE COURT: Well, that issue has already been addressed.

THE DEFENDANT: By McDermott. Of course McDermott is not the final say on this.

THE COURT: He is as far as I'm concerned.

THE DEFENDANT: Can it be raised in Federal District Court?

THE COURT: You ask your attorney Mr. Jackson.

THE DEFENDANT: I want to ask you. That's why I'm asking you.

THE COURT: You may want to ask me anything you want but I'm not answering any questions for you. Ask Mr. Jackson, he's your attorney.

THE DEFENDANT: Judge, I do not want to proceed in this trial.

THE COURT: I'm not your attorney, either, so don't ask me.

THE DEFENDANT: I am not asking you. It's not a question of admission.

THE COURT: You're asking me if you

Page 124.

could --

THE DEFENDANT: I'm asking if I could? I'm telling you. This is not a question but a statement.

THE COURT: If you're telling me you can do it, then do it. Do whatever you think you have to do.

THE DEFENDANT: Then do what?

THE COURT: I don't know. Whatever you think you have to do.

THE DEFENDANT: You're not listening to me, Judge.

THE COURT: I'm not listening to you now? Please sit down so we can proceed.

THE DEFENDANT: Judge, I insist on the right of John Africa to assist me in my defense.

THE COURT: Mr. Jamal, I am directing you to sit down so that we can proceed with this trial.

THE DEFENDANT: And I am insisting on my right --

THE COURT: If you refuse to sit down

Page 125.

you are disrupting the orderly proceedings of this court.

THE DEFENDANT: I am not disrupting --

THE COURT: And you will be removed.

THE DEFENDANT: I am not disrupting anything.

THE COURT: You won't sit down and keep quiet so we can proceed.

THE DEFENDANT: Judge, this is my trial --

THE COURT: I know it is.

THE DEFENDANT: -- and my life at stake here.

THE COURT: Okay. Mr. Jamal, I guess you have to leave.

THE DEFENDANT: If I am removed I want it on the record I do not want Mr. Jackson to represent me.

THE COURT: I know. It's on the record.

THE DEFENDANT: And I do not want him to participate in this case. I want John Africa to represent my interest in this case,

Page 126.

Judge.

THE COURT: Do you want to stay or do you want to go?

THE DEFENDANT: That's your decision. I didn't say I wanted to leave. Do you want me to leave, Judge?

THE COURT: If you want to sit down and be quiet you can stay.

THE DEFENDANT: I do not want to sit down and be quiet if my interests are going to be ignored as if I'm not here and my life is not on the line. This is your case.

THE COURT: I take it you want to be removed?

THE DEFENDANT: I don't take it at all.

THE COURT: My order is that you be quiet and sit down.

THE DEFENDANT: I am not going to sit down and be quiet while my right to defend myself is being --

THE COURT: All right. He's decided. You may go.

Page 127.

THE DEFENDANT: I do not want him to defend me or function in my role, Judge.

THE COURT: All right. Take a walk.

THE DEFENDANT: You take a walk. I don't want him to do anything in this case, Judge. I want John Africa to represent me.

THE COURT: Fine. Send him to law school. You gentlemen, could I see you over here for a second?

(The defendant was removed from the courtroom.)

(A side bar conference was held on the record as follows:)

THE COURT: Evidently this is a strategy, again.

MR. McGILL: Yes.

THE COURT: What I want to know from you gentlemen, do you want me to give that same statement again, or do you think that --

MR. MCGILL: The same statement again.

THE COURT: -- or do you think I would

Page 128.

be overemphasizing it, or what?

MR. JACKSON: I think that --

MR. McGILL: It's up to him.

THE COURT: It's really up to you to make a decision. I've said it once and I'll be glad to say it again. I'll say the very same thing that I said before. It may call their attention to the thing. Of course, they know he wasn't here once before. Yesterday he was, yesterday morning he was gone for one hour from 11:30 to 12:30 and now he's gone again.

MR.JACKSON: Well, Your Honor, in an abundance of caution I think a precautionary instruction would be required.

THE COURT: Okay.

MR. JACKSON: Particularly since we've given it one time and not give it another time --

THE COURT: Okay. You may be right. I would just rather you make the decision.

MR. JACKSON: Yes, I request the same precautionary instruction.

THE COURT: All right.

Page 129.

(Side bar conference ended.)

MR. MCGILL: Your Honor, before you let the jury in, the Commonwealth objects, again, to what clearly appears to the Commonwealth as his continual strategy to not be present in order to gain a certain amount of sympathy from the jury, to have them feel to a certain degree, sorry for Mr. Jackson who is doing an outstanding job. His strategy becomes more transparent on a daily basis and the Commonwealth continues to object. Thank you.

THE COURT: Bring the jury back in.

(The following took place in open court in the presence of the jury:)

THE COURT: Members of the jury, you are not to draw any adverse inference from the absence of the defendant. You should further refrain from any sympathy, bias of prejudice for or against the defendant. We'll proceed, Mr. Jackson.

- - -

ANTHONY L. PAUL, resumed.

Page 130.

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CROSS-EXAMINATION

BY MR. JACKSON:

Q. Good afternoon, Mr. Paul.

A. Good afternoon, sir.

Q. Earlier I asked if you were familiar with the Crime Laboratory Proficiency Test and Research Program. I believe you indicated that you were vaguely familiar with it?

A. Yes.

Q. Are you familiar with the fact that participated in this Philadelphia program?

A. Yes, sir.

MR. JACKSON: May I have this marked as Defense Exhibit, I think it would be 13?

THE COURT: Yes.

MR. MCGILL: May I see what you're referring to?

MR. JACKSON: Sure. I'm sorry.

MR. MCGILL: Which pages?

MR. JACKSON: I am going to refer to several statements but I guess the introduction is a summary so maybe four, five and six. It's in the beginning. This is a copy of it, the

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very beginning. I'm sorry. This is an excerpt.

(A discussion was held off the record.)

BY MR. JACKSON:

Q. Could you hand that to the witness, please?

Mr. Paul, if you could just glance through it, and to the best of your knowledge and information would that be a true and correct copy of the test that I've referred to, the Proficiency Test?

A. Yes, sir, to the best of my knowledge.

Q. And it's been published by the Law Enforcement Assistance Administration; is that correct?

A. Yes, sir.

Q. Now again, Philadelphia was in fact a participant in this program and at the conclusion of this study isn't it a fact that 28.2 percent of the laboratory submitted unacceptable responses regarding firearms?

MR. MCGILL: I would have to object to that, Judge, as phased. What laboratory, when, under what conditions?

MR. JACKSON: Okay.

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BY MR. JACKSON:

Q. Let me back up. Are you familiar with the way the test was conducted, sir?

A. Just vaguely.

Q. Isn't it a fact that there were laboratories selected from around the United States to submit data to LEAA Law Enforcement Assistance Administration regarding some known substances or known evidence?

A. Yes.

Q. And one category of evidence had to do with firearm identification and bullets and things of that sort?

A. Yes.

Q. And isn't it a fact that as a result of all of the tests that were conducted by LEAA that 28.2 percent of the results submitted by laboratories across the country were unacceptable?

MR. MCGILL: Objection.

THE COURT: May I see you over here?

(A side bar conference was held on the record as follows:)

THE COURT: Where are we going?

MR. JACKSON: I just want to show

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the possible and in fact, indeed, the fallibility of the testing procedure. Twenty-eight point two percent are --

THE COURT: What's that got to do with Philadelphia?

MR. JACKSON: Because Philadelphia was a participant in it.

THE COURT: Were any of them found unsatisfactory?

MR. JACKSON: Yes.

THE COURT: Why don't you dig into that?

MR. JACKSON: I guess the problem would be, Judge, that in references to the particular test the awareness that the supervisor, Mr. Paul, would have would be relevant in determining whether or not he could answer the question in effect is --

MR. MCGILL: The use of Mr. Paul testifying by reading this out loud, inasmuch as he's only vaguely familiar with it, and also you have to know all of the specific areas of the testing, who tested, what the qualifications were, what the circumstances

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were --

THE COURT: That's true, too.

MR. MCGILL: It's so highly speculative, Your Honor, it can only do one thing and that is confuse the issue by using statistics in general conditions. Unless all those factors are known it is improper to cross examine on that. And in order for them all to be known they have got to all be cited and have charts and a basis laid which would take a considerable amount of time. I think it's an unfair question as stated and as presented, this whole line of cross-examination.

MR. JACKSON: Judge --

MR. MCGILL: It's different, for example, if you say a psychiatrist that you have, like Dr. Sadoff on the stand and you are cross-examining him on his book, or a hypnotist on the stand and you're cross-examining him on a specific area of hypnosis which is his familiarity, those tests are done, as Mr. Jackson will admit, I'm sure, under various conditions, under various personnel, with

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different qualifications themselves.

THE COURT: We don't know what their qualifications are.

MR: JACKSON: Judge, I haven't been able to say anything. He's telling you what the test is and it's wrong.

THE COURT: Okay. You tell me what the test is.

MR. JACKSON: Judge, what I'm saying is this man's been qualified as an expert, you've accepted him as an expert.

THE COURT: Right.

MR. JACKSON: He's given expert information with regard to firearms and bullets and things of this sort.

THE COURT: Right.

MR. JACKSON: And he's led the jury to believe that, of course, within certain boundaries it is a very exacting science. The very issue as to whether or not it was exacting was taken up by LEAA and it shows that indeed it is not an exacting science. He says that he is vaguely familiar --

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THE COURT: Wait a minute. Who is LEAA?

MR. JACKSON: Law Enforcement Assistance --

THE COURT: So what?

MR. JACKSON: They conducted a test to determine --

THE COURT: Fine. But who are they to testify and justify their conclusions?

MR. JACKSON: Philadelphia submitted their tests to them.

THE COURT: I don't care about that. But who is LEAA? Who are the people that did this book? Who are they?

MR. JACKSON: Judge --

THE COURT: Let me say this: You've got your own expert. You've got Mr. Fosnick, right?

MR. JACKSON: But that's not the issue.

THE COURT: Wait a while. If he wants to come in and testify on these bullets and anything else, bring him in. That's fine.

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MR. JACKSON: But Judge, this is another issue with regard to the possibility of my using Mr. Fosnick. It seems to me that this man says he's going to the seminars, studies, that and the other, that's the basis of his expertise, but if in fact I can indicate on cross-examination that his expertise is not as exact --

THE COURT: Fine. Look, you've got an expert to look at that bullet, check those guns --

MR. JACKSON: But see, Judge --

THE COURT: -- and disagree with him.

MR. JACKSON: -- you told me I could ask this before because it goes to his expertise.

THE COURT: I didn't know what you were going to ask.

MR. JACKSON: That goes to the expertise.

THE COURT: It has nothing to do with it.

MR. JACKSON: It goes to the time

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he was supervising, Judge.

THE COURT: You bring somebody in.

MR. JACKSON: It's a publication.

THE COURT: I don't care about a publication. You can't put a publication in here. You bring the people in who conducted this investigation and you put them on the stand.

MR. JACKSON: He participated in it, Judge.

THE COURT: All they did is collect --

MR. JACKSON: He did the test, he did.

THE COURT: You talked about LEAA like it's something up in the air.

MR. JACKSON: No. But they collected the information.

THE COURT: I don't care. What qualifications do they have?

MR. JACKSON: He did the test, Judge.

THE COURT: I'm not going to --

MR. MCGILL: Paul did?

MR. JACKSON: He did. He and the

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staff did the test --

THE COURT: What test?

MR. JACKSON: -- and gave the information to LEAA.

THE COURT: Wait a while here.

MR. JACKSON: Yes.

THE COURT: You mean he himself told them?

MR. JACKSON: Yes. He gave them the information.

THE COURT: Answer my question.

MR. JACKSON: I did.

THE COURT: Did Mr. Paul tell LEAA that this was not an exact science?

MR. JACKSON: I don't know the exact words that he used, Judge.

THE COURT: Let's find out.

MR. JACKSON: What I'm saying to you --

THE COURT: Show me in the book.

MR. JACKSON: What I'm saying to you is that Mr. Paul and Mr. Carlin and I think there may be two or three other people on the staff during the time this test was collected

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all that LEAA did, they were really a reservoir for the information. Philadelphia, as well as a number of other cities across the country, they did tests on information that LEAA gave them. They conducted the tests and they themselves, Mr. Paul and the staff, then they sent it back to LEAA, and LEAA just published the information but it was his test.

THE COURT: Wait a while. You're still not telling me anything. What does this mean?

MR. JACKSON: The results of his tests --

THE COURT: The result of his test showed what?

MR. JACKSON: -- 28.2 percent of the tests were unacceptable.

THE COURT: His?

MR. JACKSON: Yes.

THE COURT: His are wrong?

MR. JACKSON: Yes.

THE COURT: You said the examination --

MR. JACKSON: Not his alone.

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THE COURT: That's what I'm trying to find out.

MR. JACKSON: I don't want to misquote him but if it's not 28 percent he can tell me what percent.

THE COURT: I'm not talking about that.

MR. JACKSON: He did the test. It's his test.

THE COURT: Unless we get the jury out and we find out from him --

MR. MCGILL: That's fair to do that. We have to get the jury out and perhaps we can go into chambers or in here.

THE COURT: We have to take a five-minute recess or ten-minute recess.

(The jury was excused.)

(The following took place in chambers on the record:)

THE COURT: Maybe you can show me first.

MR. JACKSON: This is a summary of the information of the book, this is an article

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from another book, and this summarizes the different tests.

THE COURT: And you're saying we have to go through all the tests they made from drugs, firearms and just a series of things? I think the best way to handle this is to bring the witness in here and let him answer the questions out of the hearing of the jury.

MR. MCGILL: Can I see what you're talking about?

MR. JACKSON: Remember, this is just a summary of the book, that article there.

THE COURT: Don't talk too loud.

MR. JACKSON: I'm sorry.

THE COURT: Tell him to come in.

MR. JACKSON: He's familiar with the book itself because we talked briefly.

MR. McGILL: It sounds a little bit unfair.

THE COURT: Do you mind just standing?

THE WITNESS: No. No. Please.

THE COURT: I'm not quite sure where he's going and I don't understand his theory,

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that's why we brought you back here.

MR. JACKSON: I guess what I need to know is, I know the publication of this LEAA publication is from 1978. I've forgotten exactly when the testing, the period of time of the testing, took place. But based on the time that I hear that you said that you were supervisor and in the Ballistics Laboratory, it should have been during the time that you were supervisor or, at least working in there.

THE WITNESS: Yes.

MR. JACKSON: And the question is: Do you in fact remember participating in the program, first of all? And maybe you can describe it to the Judge, what it was you did?

THE WITNESS: Okay. I don't recall all of the specifics of that program. I do recall that that was conducted through our captain at that time, Andy Handworker, and the tests were sent to our laboratory. We examined the pieces of material that were issued, that were sent to us, and we sent a report back to our captain.

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Now I don't have personal knowledge that our captain ever forwarded these responses to this board of inquiry. That's as much as the knowledge that I have that I know first-hand.

MR. JACKSON: So that I'd have to -- I guess Your Honor is going to say I have to bring the captain in?

THE COURT: You have to bring somebody in. Did you personally --

MR. MCGILL: May I get to the bottom line? Twenty-eight percent of what?

MR. JACKSON: Maybe I can back up this way. I think as an example they may have submitted a bullet. You can conduct a test to determine what caliber it is, what gun it came from, or something like that, I'm assuming, and 28.2 percent of the responses that they got back were wrong.

Now the range was, I think, 3.8 to 33. something percent that were wrong. It's my understanding that in Philadelphia it was 28.2 percent that were unacceptable. Now that's,

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the information I'm reading.

MR. MCGILL: Twenty-eight point two percent of the total amount sent from Philadelphia?

MR. JACKSON: Yes.

THE WITNESS: No. Excuse me? The percentages of laboratories reporting results of unacceptable proficiency. The word is unacceptable, not wrong.

MR. JACKSON: My apologies.

THE WITNESS: Of 21 tests three of them were concerning firearms, one tested a number of laboratories responding with data was 124. The number of unacceptable responses was 35, thus the 28.2 percent of unacceptable responses.

THE COURT: But that just does not apply to Philadelphia alone?

THE WITNESS: No. They're talking about laboratories.

THE COURT: In other words, they're talking about the whole country?

THE WITNESS: That's right, of 124

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laboratories that responded.

THE COURT: So in other words, even Philadelphia could have been a 100 percent right?

THE WITNESS: That's correct.

THE COURT: And we don't know that?

THE WITNESS: That's correct, because secrecy was of the utmost discretion of this report, as I can recall.

MR. JACKSON: That's true. Because what had happened, I think every one was given a code number, a secret code number.

THE COURT: What good is that in this case? That's all I care about.

MR. MCGILL: I object.

THE COURT: What do I care about 28 percent out of the whole United States being wrong?

MR. JACKSON: That isn't my understanding.

THE COURT: That's what he's reading to me.

MR. JACKSON: I understand that and I understand that and

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I'm not contradicting him.

THE WITNESS: This is not --

MR. JACKSON: And my source of information suggests something else, and I'm not arguing these figures he's reading from.

THE COURT: If the thing was secretive, as you say, how in the world can we ascertain what the true percentage was in Philadelphia?

MR. JACKSON: Because theirs, my understanding is, theirs is the source that has the key and knows the key.

THE COURT: You better bring that source or key in.

MR. MCGILL: Is this the guy?

MR. JACKSON: I think someone in the Police Department knows.

THE WITNESS: Please be assured -- and I consider myself to be still under oath -- I do not have that information as to our accuracy or our error of factor in our laboratory.

MR. JACKSON: I made the assumption that he would be the one. I didn't know that there was somebody above him or something like

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that. I will withdraw the question.

MR. MCGILL: You're saying that we do have some source of information that shows the number of Philadelphia responses and the number of Philadelphia unacceptable responses?

MR. JACKSON: Yes.

MR. MCGILL: Personally wise?

MR. JACKSON: Yes.

MR. MCGILL: For a particular period during 1978? Is that what it is?

THE WITNESS: The entire testing program consists of 21 tests.

MR. MCGILL: Twenty-one in the entire program?

THE WITNESS: Yes. And three of them were firearm tests.

MR. MCGILL: And of those three that includes the entire country?

THE WITNESS: Yes.

MR. JACKSON: That's what that table there represents.

THE COURT: But we don't know whether the three firearm tests were 100 percent right.

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Maybe the inaccuracies were in some other department.

THE WITNESS: That's absolutely correct.

MR. JACKSON: That is possible.

THE COURT: That's what I'm talking about. He's here for one thing only. He's not accountable for criminalists or anybody else.

MR. JACKSON: I understand that, Judge, but even if what you're saying is true, it could be that Philadelphia just dealing with firearms they could have given 100 percent acceptable findings with the firearms, but my information is that Philadelphia was on the average as bad as most of the other major cities.

THE COURT: In firearms?

MR. JACKSON: Yes, in firearms, too.

THE COURT: You better get your source in here.

MR. MCGILL: At least some documentation.

MR. JACKSON: But wait a minute, if

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you will, Judge. All I'm simply saying is, fine, I don't have to prove it through Mr. Paul.

THE COURT: You can't prove it through him because he doesn't know what you're talking about.

MR. JACKSON: I asked him if he was familiar, and my assumption was if he didn't know, no one would know. Now, he says he has a captain and there's probably someone else. I accept your ruling. I have no argument. I'm simply saying because of the information I think I have I wanted to find out if it was true through him, and if it worked I didn't need anybody else.

THE COURT: All right. Is there any other issue we have to resolve while we have him out here?

MR. JACKSON: I don't have anymore statistics like that. I'm going to ask him some questions about statistics with regard, as an example, fingerprints you can say --

THE COURT: He's not here for

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fingerprints.

MR. MCGILL: No, it's as a comparison.

MR. JACKSON: Yes. With fingerprints you can say 100 percent with absolute certainty there are no two alike. When you do the same thing with a weapon can you answer that yes, no two weapons can fire the same bullet? I don't think you can. I don't know but maybe he will say yes, you can. But I will to this effect be testing his expertise.

THE COURT: On that phase?

MR. JACKSON: Yes.

MR. MCGILL: But you're not going to come up with books or any other things, or are you?

MR. JACKSON: If I brought the books he probably knows more about it than I do. There are no more tables or percentage charts.

MR. MCGILL: I'd like to take a look at it if you do.

MR. JACKSON: I don't think so. That's pretty much it. I will ask him about

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a number of tests, if he's familiar with it or isn't. I'll ask him whether he used them in this case.

THE COURT: Fair enough.

MR. MCGILL: The tests to determine the comparison?

MR. JACKSON: The comparison and with regard to the tests on the weapon as well.

MR. MCGILL: All right. That's fine.

MR. JACKSON: Okay.

(Conference in chambers ended.)

(The following took place in open court in the presence of the jury:)

MR. JACKSON: May I proceed, Your Honor?

THE COURT: Yes, please.

MR. JACKSON: Thank you.

- - -

ANTHONY L. PAUL, resumed.

BY MR. JACKSON:

Q. Now Mr. Paul, you've been with the Philadelphia Police Department in the Ballistics Laboratory for about how long?

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A. Since 1970, sir.

Q. 1970. You became supervisor in '74; is that right?

A. That's correct, sir.

Q. Now, you've given us already a description of the courses and educational background that you have in Ballistics. I'm going right to the weapons themselves. You've conducted various tests on both weapons: is that correct?

A. Yes, sir.

Q. Now specifically with regard to the Smith & Wesson, which is C-23, you conducted several tests, number one, to determine that it was defective in some way; is that correct?

A. Yes, sir.

Q. Now, would you explain to me and the jury as well whether, in fact, the defect had anything to do or has any impact on the safety mechanism or the safety lock in that weapon?

A. It would have no effect on the safety lock. The --

Q. None whatsoever? I'm sorry. Go on.

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A. The Smith & Wesson has two safeties that are incorporated in the firearm itself; number one is a hammer lock that is a physical safety that is employed in the frame, the second safety that they call a primary safety is the rebound slide, and both safeties are operational and working in that particular firearm, sir.

Q. Are you saying as well that the oversized hand grip on a Smith & Wesson, that, too, has no impact on the safety lock?

A. That's essentially correct. That's what I'm saying. When we look at the gun and we are assured that it is not loaded --

Q. Yes, sir.

A. -- and what we're saying is that presuming that the firearm was loaded --

Q. Yes, sir.

A. -- and that we were going to cock the gun manually by pulling the hammer to its fullest position, with the hammer spur bent in the way that it is the gun will not cock by itself without applying a good deal of extra force. Say that your fingers were to slip from the hammer, in that position the firearm

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will not discharge.

Q. It will not discharge?

A. No, sir, it will not because of the primary and the secondary safeties are both operational. That was checked for, sir.

Q. Okay. So did you conduct what is called a percussion test or some sort of drop test?

A. A drop test?

Q. Yes.

A. I did not.

Q. Did anyone conduct it?

A. Not that I know of.

Q. Is there some reason why it wasn't conducted? Let me stop you. Can you explain to the jury what a drop test is?

A. Okay. A drop test is performed when a firearm is cocked and then you drop that firearm to see if the hammer falls accidentally. And you put a primer shell inside of the cartridge, inside of the chamber, and that allows the firearm to discharge if it were so disposed to do. I did not do that because we already are dealing with a firearm with a bent hammer spur

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and with the top portion of the back strap of the hard rubber grips interfering with that free movement of the arm.

Q. So that you're saying, in effect, that aside from the bent mechanism that the grips on the weapon itself interferes with the free flow of the hammer?

A. With that hammer spur bent back, yes, sir.

Q. Okay. So then are you saying that if you conducted the drop test you know for certain what the results of that test would have been?

A. I don't know for certain but falling back on my background I would feel that this already has push off force being applied to it. At this very moment there is a force being applied to the back of this hammer.

Q. Right.

A. When the firearm is being manufactured and it goes through one of its checks at the company there is a check called push-off and that check is when you push on the hammer spur to see if the hammer will let go by itself. And all that really does is tell you whether or not you have satisfactory sear engagement with the searing cock cage on the inside

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mechanism of the firearm.

Q. Did you conduct a push-off test on the weapon once you received it?

A. I did not, sir.

Q. Did anyone?

A. Not to my knowledge.

Q. Was there some determination that a push-off test was also not required?

A. Just that what I'm showing you, that's the only way that I base it on.

Q. So simply based on your experience you thought that it was just unnecessary?

A. Yes, sir.

Q. It's a fact that had you conducted the push-off test or had you conducted the drop test there may have been some results different than what your expectations are?

A. There's always that possibility.

Q. But you nevertheless didn't and no one else did: is that right?

A. That's correct, sir.

Q. Is the percussion test and drop test pretty much the same thing? Are you familiar with the

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percussion test?

A. I'm not familiar with that phrase.

Q. Okay. Now, one other thing with regard to the safety lock. So that I understand it -- and I'm really ignorant about these weapons -- one of the safety locks in that Smith & Wesson, C-23 I think it is, when your finger is in that little loop --

A. The trigger guard.

Q. -- the trigger guard, you disengage or do you disengage the safety lock?

A. Yes, sir. When you have the firearm in a cocked position and you prevent forward motion of the trigger you then stop both safeties and the gun will discharge.

Q. Now Mr. Paul, given the oversized grips -- and we'll assume for a moment that the weapon did not become defective until some time later on. But let's assume that the weapon was fine but it had those grips on it, would it require more pressure to fire this weapon than a similar Smith & Wesson without the grips?

A. I'm sorry, somewhere in there I got a little --

Q. Sure. It's my understanding -- and correct me

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if I'm wrong -- that to some extent those oversized hand grips will interfere with the movement of the hammer on that weapon; is that right?

A. No, that's incorrect. It will not interfere with the movement of the hammer if that hammer was not bent.

Q. So you're saying now it's only as a result of the hammer being bent that the hand grips are interfering with it?

A. Oh, yes. That was my --

Q. Okay.

A. -- my statement from the beginning.

Q. My apologies, sir. Now, you indicated that you assume that the hammer was bent very recently and you conducted your test on December the lOth, I believe?

A. Yes, sir.

Q. Could you tell us how recently?

A. No.

Q. Could you tell us whether it was in a 24-hour period, 48, one week, one month?

A. Not with any scientific accuracy no, sir.

Q. So that as far as the -- the weapon can still

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fire; is that right?

A. Oh, yes.

Q. So that if Officer Faulkner had that weapon it could have been defective for weeks: is that right?

A. Yes, it could have been.

Q. And given the fact that the hammer would have been bent with the oversized grips it would have required more pressure to fire than a similar Smith & Wesson without the defect and without the hand grips; is that right?

A. That's correct.

Q. Now, for my benefit as well as the benefit of the jury, is there some way you can describe to us how many pounds of pressure one normally needs to fire and then how many pounds of pressure one would need to fire that weapon? You know, the ratio and the difference, can you tell us?

A. The difference in shooting the weapon in a double-action phase where you would just pull the trigger straight through there would be no appreciable difference. The manufacturer recommends approximately eight pounds of pressure to pull through so that you can have that firearm discharge. The single-action

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position would vary somewhat in getting the gun to cock and then to fire it it would require about three and a half, four and a half pounds of pressure.

Q. Is there any way that you can estimate how much a gun, no defect, no oversized hand grips, how much pressure it would take to cock the weapon normally?

A. No, because that's the area of the malfunction, in the area of manually cocking the gun, and once it reaches its fullest rearage position you must push on it additionally to have it lock in that sear engagement and that is the area of the malfunction.

Q. Now Mr. Paul, I believe that I was beginning to discuss the first time I started questioning you with regard to empirical data that exists with regard to firearms. Now, we've heard testimony earlier regarding fingerprints and we know from television, as well, that there are no two fingerprints alike.

Now with regard to firearms and bullets you've testified earlier with regard to your examination and analysis of various projectiles and lead fragments and things of that sort. Can you say with 100 percent certitude, as we would say with fingerprints, that no two guns could place the same

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striations, same markings on a bullet?

A. I can say that the probability would be 275 billion to one --

Q. Two hundred --

A. -- of having the same markings produced by two different guns.

Q. And what --

A. So that even though it is possible, it is highly improbable.

Q. And that's based on what, sir?

A. That's based on a study done --

Q. Did you conduct the study?

A. I did not conduct that study, sir.

Q. I'm asking you -- maybe I should ask this question: Based on your own personal knowledge do you know whether in fact two weapons could place the same markings on the same bullet?

A. I do not.

Q. You do not know?

A. No, sir.

Q. Now the other question, sir, let me get to the lead fragments, first of all. Those fragments that you examined earlier -- I don't know if you necessarily

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have to go to them. You examined them and you could make no determination other than the fact that they were lead fragments perhaps from a projectile: is that correct?

A. That's correct.

Q. Could you determine the age, how long they may have been fragments as opposed to bullets?

A. No, sir.

Q. So you don't know whether or not they just came from a bullet or had been there for years; is that right?

A. Well --

Q. You tell me. I don't mean to put words in your mouth.

A. I would say that they would be fairly recent. By fairly recent I'm talking about they were not lying on the street like for a month or two months or anything like that because they weren't oxidized.

Q. And by oxidized could you explain to us --

A. I'm talking about the oxidation that would be present on the lead itself. It wouldn't have a white powdery substance that lead develops after it has been weathered and aged for a period of time. No, that

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was not present on the projectiles.

Q. Now, can you in any way, given all of the lead fragments that you've had, if you were somehow able to use some Crazy Glue and put them altogether would they amount to another bullet, another projectile? Do you follow my question?

A. Yes, I do.

MR. MCGILL: I would have to object only because of the location of the fragment, the projectile, in the bullet specimen in order to make a determination that they would be the one.

THE COURT: I'll allow you to bring that out.

THE WITNESS: No, there wouldn't be.

BY MR. JACKSON:

Q. Not enough?

A. Not enough.

Q. Now, you examined a total of how many projectiles?

A. Five, I believe.

Q. Five?

A. I believe it was five.

Q. It was three projectiles, there were eight lead

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fragments and one bullet jacket. Okay. Now, we know one projectile was removed from Mr. Jamal; we know that one projectile was removed from Officer Faulkner; the third projectile was given to you by Officer Land?

A. That's correct.

Q. And that was taken from the doorway of -- well, I don't know what information was given to you.

A. No. I just have -- it was just listed as two on that property receipt that was admitted.

Q. Fine. Now, other than the bullet taken from Officer Faulkner and the bullet taken from Mr. Jamal, this third bullet, what were your results in your examination of that bullet, sir?

A. It was unsuitable for comparison purposes: it was indeterminable.

Q. Now, is that as a result of the manner in which it was fired, or the manner in which it may have been retrieved?

A. It was -- since I wasn't there when it was retrieved I really don't know.

Q. There is no -- you can't tell whether it may have been the markings on the projectile that may have

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been caused by some other source after firing?

A. I see what you mean. Such as an instrument that was used to dig the projectile away from the surface that it struck?

Q. Exactly.

A. No, there was no presence of marks of that nature like a pocketknife or an instrument that was used to scrape it.

Q. Now, if I understand you correctly, the only bullet that you've been able to positively identify is a bullet that was removed from Mr. Jamal. You can positively identify that bullet as coming from C-23; is that correct?

A. That's correct, sir.

Q. Now, when you're saying positively I still understand you to say that you're not necessarily saying 100 percent certain but maybe 99 percent: is that fair?

A. No -- well, I'm saying that it came from that gun.

Q. Is that fair? No question about it in your mind?

A. No question about it in my mind.

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Q. Now with regard to the other bullets that were in Officer Faulkner, you can't tell which weapon it came from: is that right?

A. That's correct.

Q. Now, you indicated on direct examination that the bullet was fired from a gun -- well, let me strike that.

You first indicate that the markings, the striations, the lands and grooves and all of that, were indeterminable?

A. That's correct.

Q. Would you explain to us -- because it seems like I can't reconcile the two things -- when you say that it's indeterminable yet it's similar, to get you to believe that it may have fired from a Charter Arms, if it's indeterminable how can you tell that it may have been fired from a Charter Arms?

A. Okay. When you look at the bullet specimen itself you will find that the individual significance of the specimen, the individual striations that were engraved that would permit me or permit the Firearms Examiner to say that a specific firearm discharged it, those individual characteristics are gone.

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Q. Right.

A. The general characteristics being part of the eight lands and grooves with a right-hand direction of twist, you have a part of that still exposed with sufficient quantity to be able to say that a firearm rifled with eight lands and grooves with a right-hand direction of twist discharged that projectile. But you can't say which firearm with eight lands and grooves fired that projectile. Is that clear?

Q. Yes, I understand, sir. A Charter Arms has eight lands and grooves; is that correct?

A. Yes.

Q. How many Charter weapons are there? Do you think?

A. Conservatively a million.

Q. A million. How many other weapons are manufactured that have eight lands and eight grooves and I think you said a left --

A. Right-hand.

Q. Right-hand --

A. Would you be satisfied with three right off the bat? Arminius, Firearms Import/Export and Charter Arms are all eight lands and grooves with a right-hand

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direction of twist.

Q. Tell us how many, approximately, how many millions of guns have eight lands and grooves and how many would provide this bullet?

A. Multiples of millions.

Q. Multiples of millions?

A. Yes.

MR. JACKSON: I have no further questions. Thank you.

REDIRECT EXAMINATION

BY MR. MCGILL:

Q. Mr. Paul, would you take a look at C-22, the Charter Arms?

A. Yes, sir.

Q. From the standpoint of the weapon itself what effect does a 2-inch barrel have on accuracy?

MR. JACKSON: Objection. Beyond the scope.

MR. MCGILL: Move to reopen for those few questions, Your Honor.

MR. JACKSON: Objection.

THE WITNESS: The question was, what

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effect does a 2-inch barrel have --

MR. MCGILL: Have on the accuracy. Obviously, it depends a lot on the one who's shooting it but --

THE WITNESS: It's accurate within 60 yards.

BY MR. MCGILL:

Q. Now, in reference to, again, that particular weapon, what effect, if any, if it exists, would a recoil have on the accuracy?

A. It would have a tendency to throw the firearm astray on recoil.

Q. Would there be recoil on that weapon?

A. Yes, you would suffer a recoil with this firearm.

Q. What would be the reason why a recoil would be present in that weapon?

A. A few reasons. First of all, you're dealing with a shorter barrel so you still have the gun powder burning rapidly as the projectile is exiting the barrel, and that causes recoil. Secondly, you have a lighter weight firearm which amplifies the recoil. If the firearm is heavier then you have a

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firmer platform from which to shoot. If the firearm is lighter then you have less of a platform from which to shoot and you have more severe recoil.

Q. We're using the word recoil. Tell the jury what a recoil is.

A. Recoil is the effect that the shooter feels when the firearm is discharged as a result of the propellant powders burning inside of the cartridge and the projectile exits. It is at that point the part of that -- if you recall, we talked about chamber pressure. Part of that 18,000 pounds or 21,000 pounds of pressure that is burning here, when that projectile exits you feel that recoil. That's the residual gases blowing rearage against the firearm itself.

Q. If you're talking about a recoil then if I have a gun -- and I'm pointing out that gun, the one you have right there -- then on a recoil you mean your hand might move like this?

A. That's correct.

Q. I'm indicating my right hand jerking a little bit. Is that the recoil effect?

A. Yes.

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Q. Would it be fair to say that it would be certainly for the purposes of accuracy in the shooter's best interest to get as close to the target as you can with a recoil like that?

A. Yes.

MR. JACKSON: Your Honor, I object. You can show that with any gun it's best to go as close you can.

MR. MCGILL: I withdraw that question.

BY MR. MCGILL:

Q. That is operable -- is it not? -- that weapon that you had made the determination on?

A. Yes, sir.

Q. And of course is unloaded?

A. Yes, sir.

Q. What kind of trigger pull does it take for that weapon to fire in your experience?

A. It falls within the same specifications as the Smith & Wesson.

Q. And how much is that?

A. About eight pounds, ten pounds, double-action and about four single-action.

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Q. All right. Eight to ten pounds double?

A. Double-action.

Q. That means hand pressure?

A. Yes. That's squeezing the trigger and compressing the main spring.

Q. Now, you did indicate, I believe, that there was eight pounds for the Smith & Wesson, too?

A. Yes.

Q. That's C-23, the one you had before?

A. That is correct.

Q. As I understand your testimony -- and I want to make sure it's clear to me -- that there is no question that with or without the defect that you have pointed out in the Smith & Wesson it can be fired double-action without a problem: is that correct?

A. Oh, yes, sir.

Q. So that it is not a perfect weapon but it does not affect its ability to fire?

A. It can be fired single-action as well.

Q. But at least double-action there is no problem?

A. That's correct.

Q. Would you, as long as you're holding that up

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that way, would you fire that in double-action, fire that upwards, just pull the trigger upwards?

A. Just to show that this firearm is indeed empty, void of any ammunition, the double-action shooting phase would be to squeeze the trigger and in squeezing the trigger you compress the main spring cocking the hammer allowing it to fall at the end of the trigger pull.

Q. Would you do that in one motion? Would you with the Court's permission, come out here --

MR. JACKSON: Your Honor, I object. What is the relevance?

MR. MCGILL: Quite relevant, Your Honor.

THE COURT: I don't know.

MR. JACKSON: I'd like an offer of proof, then.

THE COURT: All right.

(A side bar conference was held on the record as follows:)

MR. MCGILL: Your Honor, what the Commonwealth intends to do is, we've already determined this gun was operable as he fired it.

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It is the Commonwealth's intent to prove first degree murder, it was his intent to shoot, shoot to kill. It is my request at this point, Your Honor, to ask Mr. Paul to come out to the floor area and demonstrate with his weapon pointing to the floor three or four shots. It is relevant, most relevant, because it is meant to show an intent to kill.

THE COURT: What is the difference?

MR. MCGILL: Because the facts in this case were --

MR. JACKSON: I don't understand the value of having him point a gun. Why not him, or why not me do it? I mean to use this witness -- it's irrelevant, has no probative value. All its being used for, Judge, is to inflame the passion of the jury. There's no probative value of that whatsoever.

MR. MCGILL: It's quite probative, Your Honor. The reason is, this is the basis for it, it's to show the intent and premeditation and deliberation of his act.

MR. JACKSON: This witness is going

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to do --

MR. MCGILL: Let me finish. Because he is the most qualified expert in terms of Ballistics that we have here, unless Mr. Jamal would like to show us.

THE COURT: He can do that from the witness stand.

MR. JACKSON: I'm saying even from the witness stand it has no probative value.

THE COURT: Well, you can show him the difference between double-action and single-action.

MR. MCGILL: Judge, I do not want to do this. It's probative for this reason: What I wanted to do is -- I have to show an intent and deliberate intent to kill, Judge. It's my obligation to show that to the jury. I want them to see that with the double-action, three or four times shooting that weapon, show the effort, the intent of the actions --

THE COURT: But really if we're going to do that then we should load it, if that's what you're talking about.

Page 177.

Paul - Redirect

MR. MCGILL: I am not going to load it.

MR. JACKSON: That's my point.

MR. MCGILL: How.could that possibly be relevant?

MR. JACKSON: That's the only way.

THE COURT: You want to show the whole thing you just load it.

MR. MCGILL: Load it.

THE COURT: Yes. Let me say this: He can show us from the stand and he can tell you how much pressure there is --

MR. MCGILL: I'm not interested in the pressure because it's not a situation, Judge, where you stop --

THE COURT: The pressure is showing the intent. In other words, if you have to use pressure to pull a gun, that's more likely to show intent than it would if it accidentally went off, for instance. You know if you have --

MR. MCGILL: I understand what you're saying.

THE COURT: -- if you have a single

Page 178.

Paul - Redirect

cock it's easier to go off.

MR. MCGILL: But the facts demonstrated through our eyewitness would he this way and I would like the jury to see that weapon.

THE COURT: The jury can see the weapon.

MR. JACKSON: Judge, the witnesses have already demonstrated. They had this witness come on to do the same thing. It's cumulative.

THE COURT: Yes.

MR. MCGILL: By this time we have the weapon, Your Honor, and it's important for me to show how the --

THE COURT: You can show it if you want when you're summing up. That's different.

MR. JACKSON: That's right, as long as he doesn't load it. I'm sorry; I didn't mean to interrupt.

MR. MCGILL: Could he show from the stand four shots pointing downward?

THE COURT: He can show, if you want to, the pressure and get his feeling as to

Page 179.

Paul - Redirect

the pressure, how much pressure it takes to shoot this gun. That's relevant to show that somebody intentionally shot it and it didn't go off accidentally.

MR. MCGILL: Of course.

MR. JACKSON: But he's already answered that.

THE COURT: He may have.

MR. JACKSON: He's got it from you. He said eight pounds.

MR. MCGILL: He said eight pounds and he pushed it. I would like to see him -- he's certainly qualified to do it, to demonstrate four shots.

THE COURT: You can do that when you sum up.

MR. MCGILL: You don't want me to do it, Judge?

THE COURT: No.

MR. MCGILL: All right.

(Side bar conference ended.)

BY MR. MCGILL:

Q. All right. I'll withdraw that question.

Page 180.

Paul - Redirect

In other words, each time you would use that weapon on double-action you would require that same pressure, eight to ten pounds from one's hand; is that correct?

A. That's correct, sir.

Q. What was the reason why a drop test and push off test were not used?

A. Because the firearm had that defect. It had the bent hammer.

Q. What possible difference could that test have resulted in in terms of showing any kind of relevant data for your examination?

A. I felt as though it would have no difference.

Q. Finally, I believe that you had mentioned this before, you mentioned this 275, was that million?

A. Two hundred and seventy-five billion to one.

Q. Billion to one that it would not be a different gun?

MR. JACKSON: Objection, Your Honor. It's not within his personal knowledge.

MR. MCGILL: All right. I withdraw that.

Page 181.

Paul - Redirect

BY MR. MCGILL:

Q. But it is fair, is it not, to say from your experience for those number of years that in your mind there is no question that that bullet was fired, the bullet C-37 was fired from that revolver; is that correct?

A. Sir, let me say that in my opinion the projectile in question was fired from Commonwealth Exhibit 23 to the exclusion of all others.

MR. MCGILL: Thank you. Nothing further.

MR. JACKSON: Just briefly, Your Honor.

RECROSS-EXAMINATION

BY MR. JACKSON:

Q. So that I'm certain as well, with regard to the bullet that was found in Officer Faulkner, you're certain that there might be multiple millions of guns that could have fired the bullet?

A. That's correct.

Q. The other thing, Mr. Paul, so you can explain it to us, I think you spoke about a jacket, bullet

Page 182.

Paul - Recross

jacket?

A. Yes, I did.

Q. That was also submitted to you?

A. Yes.

Q. Do you know from what bullet it came from?

A. No, sir.

Q. And could you tell us whether or not a bullet jacket would he more appropriate for a Smith & Wesson, or more appropriate for the Charter, or does it make any difference?

A. The --

MR. MCGILL: Objection. What was the question again?

MR. JACKSON: Yes.

THE COURT: I want to know what jacket?

MR. JACKSON: There was a jacket, bullet jacket, found at the scene and Mr. Paul indicated that he examined it. I wanted to find out within his expertise whether or not it would be more appropriate for that jacket to be on a bullet that's in the Smith & Wesson as opposed to a Charter, or if it makes any

Page 183.

Paul - Recross

difference at all.

MR. MCGILL: More appropriate? I don't understand how that is relevant.

MR. JACKSON: Well, based on his expertise.

MR. MCGILL: Well, they can be fired from either.

THE COURT: All right. I'll let him answer.

MR. JACKSON: Thank you.

BY MR. JACKSON:

Q. Would you answer that, sir?

A. It can be fired from either.

Q. Fine. So you have no way of knowing, based on the information I've given you thus far, knowing whether the jacket was on the bullet or from a bullet in the Smith & Wesson or the Charter; is that correct?

A. That's correct.

Q. Now, the jacket is used for what purpose? I think you've explained it but I have some more questions so could you explain it again what it is used for?

A. The jacket is used primarily in conjunction

Page 184.

Paul - Recross

with a small point or hollow point type of bullet and the jacket restricts the expansion or it controls the expansion of the projectile when the projectile strikes its target.

Q. Would you explain that restricted expansion?

A. Okay. It also acts as a gas seal around the base of the projectile so that if we go back to our original chamber pressure and if we think of those 18,000 pounds of pressure or 21,000 pounds of pressure, if we have a jacket bullet or a bullet with a copper cup surrounding the lead bullet itself -- the bullet is sitting in a copper cup called the jacket. If we look at that, when the projectile is fired, the base of the bullet being copper acts as a gas seal so that you have, in essence, a more effective projectile.

If we go to the other end of the spectrum where the projectile now strikes its target, with that copper cup filling up an area above a hollow point projectile, when that projectile strikes the copper cup acts so as to control the projectile in its expansion so as to prevent that projectile from fragmentation, total fragmenting, and losing all of

Page 185.

Paul - Recross

its shock of power. That controls it, allows it to go from 30 caliber to 58 calibers, just say hypothetically, and then stop at that point.

Q. But would that jacket prevent fragmenting?

A. It would help to control fragmentation.

Q. You talked earlier about standard, the bullets that, I guess, are the standard bullets that the police are issued. Are they jacketed?

A. No, sir, not right now.

Q. So that if we assume that the bullets in Officer Faulkner's gun were City issued standard bullets, there would have been no jackets on them; is that right?

A. That is correct, sir.

Q. Now, was there any indication, other than the one jacket that you were given, was there any indication that there were jackets on any other bullets or projectiles that were found at the scene?

A. No , sir.

Q. Another thing, sir, when the bullet is fired I* lead comes out of the gun, the barrel of the gun; is that correct?

A. Yes, sir.

Page 186.

Paul - Recross

Q. Now, with the Smith & Wesson, and I suppose a Charter -- let me do them one at a time.

The Smith & Wesson, I guess that's C-23, when it's fired the lead will travel how far approximately? Is there a limit to how far the powder and lead -- 1 guess it's called, is it nitrate?

A. Yes, the gun powder?

Q. Yes.

A. The burning gases.

Q. Yes, the burning gases.

A. All right. The burning gases from a 4-inch barrel using City ammunition?

Q. Yes, sir.

A. Usually run about three feet and then you get a very fast, very rapid, fall off to almost no residues at all, between soft contact and barely touching. At three feet you will get some residue. In distances up to two feet you can determine, you can get a discernible pattern. In other words, you can reproduce that pattern over and over and over.

Q. Beyond from two to three feet you then get an irregular pattern but you won't get residues.

Q. How about primer lead?

Page 187.

Paul - Recross

A. Primer lead?

Q. Yes.

A. You can get primer lead.

Q. Well, tell me, primer lead does not project as far as the nitrates: is that right? In other words, I think you've indicated that the nitrates, that you might find it up to about three feet. My understanding is that with the primer lead you may not find it any further than 18 inches or so?

A. Yes, I would say that that's -- I'm trying to think of the exceptions. The primer lead, when the projectile is fired the primer lead and some of the primer material will blow out actually in front of the projectile, and 18 inches is not uncommon to find primer.

Q. Okay. Would it be fair to say that if you find the nitrates you ought to find the primer lead, too?

MR. MCGILL: Objection. It's beyond the scope of direct examination, as well as, relevance.

MR. JACKSON: It goes to his expertise. He's talking about nitrates --

Page 188.

Paul - Recross

THE COURT: It's all very interesting but let me see you over here.

MR. JACKSON: Your Honor, it goes to his report.

(A side bar conference was held on the record as follows:)

THE COURT: Yes, it may be in his report but where is the relevance,in this case? Enlighten me so I can understand.

MR. JACKSON: You have the nitrates that go up to three feet.

THE COURT: I know all of that. Why is it relevant?

MR. JACKSON: Because in some instances they find the nitrate but not primer --

THE COURT: I know that but why is it in this case? I don't care if it's in the report.

MR. MCGILL: I will object. Primer lead where?

MR. JACKSON: Right here.

THE COURT: I don't care if it's in there. Is it relevant for any reason?

Page 189.

Paul - Recross

MR. MCGILL: The only primer lead, if you're talking about close range primer lead residue, you're talking about evidence of close range firing which is not in this report.

MR. JACKSON: But he's the --

MR. MCGILL: In other words, you don't have those fragments, close range firing you don't have that. I mean all you've talked about in this report is bullets. If he's talking about primer lead residue the appropriate person to talk to would be a Criminalist or chemist who I will put on.

MR. JACKSON: Judge --

MR. MCGILL: And if ne wishes to call back Mr. Paul I will make him available.

MR. JACKSON: That's what I'm trying to avoid. Judge, this is the -- and I have no problems with me calling him back.

THE COURT: This is all interesting --

MR. MCGILL: I object.

THE COURT: -- but --

MR. JACKSON: I only have two more --

THE COURT: This drop test was

Page 190.

Paul - Recross

interesting. What's that supposed to show? You mean if you drop the gun there are effects to that?

MR. JACKSON: Yes. I wanted to find out if it was done. There's only two or three questions --

MR. MCGILL: I would object to anything further.

THE COURT: If it becomes necessary you call him back.

MR. MCGILL: I will make him available.

THE COURT: Okay.

MR. JACKSON: All right.

(Side bar conference ended.)

MR. JACKSON: Mr. Paul, I'm going to withdraw that question and I have another one for you -- I have no further questions of you now.

MR. MCGILL: I have one area brought up on recross and that is it.

BY MR. MCGILL:

Q. I believe there was a question as to the fact

Page 191.

Paul

that a Smith & Wesson, as well as, the Charter Arms could have fired a second bullet specimen. In reference to the question that he asked you, would you take a look -- well, you don't even have to take a look. Having examined the Smith & Wesson, the policeman's revolver, having examined that, sir, what did you find inside?

A. You mean submitted with the revolver?

Q. That's correct.

A. Four out of five submitted with the revolver I found four Remington cartridges, caliber .38 Special having 158 grains, semi wadcutter lead bullets, and one Remington fired cartridge case that is consistent with the other four cartridges.

Q. Look at your report under number one.

A. I'm sorry, five Remington cartridges.

Q. Five.

A. And one --

Q. Speak to them.

A. Five Remington cartridges, caliber .38 Special, nickel plated case, uncoated semi wadcutter bullets, City issue type. The next item, fired cartridge case, number one.

Page 192.

Paul

Q. All right. By reading it all you found five live bullets not fired and one fireable; is that correct?

A. Yes.

Q. And also you have determined that the fired, excuse me, the projectile that had been submitted, C-37, was fired from that revolver, right?

A. That's correct.

Q. And it was fired one time?

A. That's correct.

MR. MCGILL: Thank you. That's all Your Honor, the Commonwealth's next witness -- may I see Your Honor at side bar?

(A side bar conference was held off the record.)

THE COURT: I think we're going to adjourn early today, for a change, until tomorrow morning at 9:30. We'll be prompt, please.

May I see you?

(A side bar conference was held off the record.)

Page 193.

- - - -

(Court adjourned until Thursday, June 24, 1982, 9:30 o'clock, a.m.)

- - - -

Page 194.

INDEX

COMMONWEALTH EVIDENCE DIR CR RD RC
Officer Francis Dixon
By: Mr. McGill 2 6
Mr. Jackson 5 8
Officer James Morton
By: Mr. McGill 8
Mr. Jackson 10
Officer Miguel Deyne
By: Mr. McGill 13 17
Mr. Jackson 16
Officer Joseph Zenak
By: Mr. McGill 18 29
Mr. Jackson 23
Joseph Grimes
By: Mr. MCGILL 30 65
Mr. Jackson 43 68
Anthony L. Paul
By: Mr. MCGILL 88 169
190
Mr. Jackson 130 181

- - - -


Page 194.


I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the trial of the above cause, and that this copy is a correct transcript of the same.


Official Stenographer


The foregoing record of the proceedings upon the trial of the above cause is hereby approved and directed to be filed,


Judge