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 25, 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
    Counsel for the Defendant


Page 1A.

COMMONWEALTH'S EVIDENCE

WITNESS DR. CR. REDR. RECR.
Michael Scanlan 4 12 58 65
Albert Magilton 75 81 104 107

- - - -

COMMONWEALTH'S EXHIBITS

EXHIBIT IDENTIFIED
59 Photograph 137

- - - -

Page 2.

(Conference was held on the record, in chambers, as follows:)

MR. JACKSON: I just spoke with Mr. Jamal, after he's had an opportunity, I guess, five, ten minutes or more, with Janet Africa. Mr. Jamal indicates to me that he no longer wants Judge Sabo to deliver messages through me, and that if the Judge wants to talk to him, the Judge knows where he is. He further indicates that if the Judge wants to know what he intends to do, let the Judge ask him, either back there in the room or in open Court, because he will not give me an answer, because it's not a question that I'm making, but it's a question of the Judge's. And if the Judge wants to know, the Judge should ask him.

So, as a result of that, he has not given me any indication at all as to what he's going to do.

THE COURT: All right.

MR. JACKSON: He did indicate when I asked him specifically, what he was going to do,

Page 3.

he said, that he was going to do what was right, and with no further explanation.

THE COURT: All right. We might as well bring him in real fast.

(Conference in chambers ended.)

(Conference held on the record, with the defendant present, as follows:)

THE COURT: Let the record indicate we're at side bar with Mr. Jamal. The Court would like to know whether or not you've changed your mind, and will be respectful and not disruptive in the orderly procedure of this trial, and whether or not you wish to come back into the courtroom under those conditions.

THE DEFENDANT: I've never been disruptive of this trial. I will do what is right.

THE COURT: What do you mean, do what is right? Does that mean you're going to step up again in front of the jury and start asking questions, and making comments or statements in front of the jury?

Page 4.

THE DEFENDANT: No, doing what is right means, I'm going to do what is correct.

THE COURT: All right. Then you can come in. If you behave yourself, you'll stay and if you don't you will go out.

(End of side bar conference)

(Whereupon the jury entered the courtroom and the following took place:)

THE COURT: Good morning, ladies and gentlemen.

MR. MCGILL: Your Honor, may I proceed?

THE COURT: Yes.

MR. MCGILL: Mr. Michael Scanlan is the next witness.

MICHAEL SCANLAN, having been duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. MCGILL:

Q. Mr. Scanlan, can you hear me, sir?

A. Yes, sir.

Q. All right. Speak up loudly please, so that the jury can hear you, as well as the defense counsel, and the defendant.

Page 5.

SCANLAN - DIRECT

How old are you, sir?

A. Twenty-five.

Q. On December 9th, 1981, a little bit before 4:00 a.m., did you have occasion to be at the area of 13th and Locust Streets?

A. Yes, sir.

Q. Where were you?

A. I was at the intersection of 13th and Locust, the traffic light.

Q. Were you on the sidewalk, or were you in a car?

A. I was in my car.

Q. Were you stopped or were you moving?

A. I was stopped. I came to a stop at the red light.

Q. Would you tell us what you observed.

A. I noticed the policeman talking to a gentleman in front of his police car, and he told the gentleman to turn around, and as he was talking with the man he told him to turn around and --

MR. JACKSON: Objected to, unless this witness heard it, your Honor.

Q. You can only say --

THE COURT: Rephrase your question.

Page 6.

SCANLAN - DIRECT

Q. You can only say what you observed. Did you hear him say turn around?

A. No, I didn't.

Q. Just tell us what you heard or what you observed.

A. I could tell they were talking because their mouths were moving. The black gentleman turned around and spread-eagle in front of the Volks -- in front of the police car, while the officer was going to, I think, pull out his handcuffs.

MR. JACKSON: Objection as to what the officer was going to do.

THE COURT: Will you rephrase the question.

Q. What did you observe the officer and this man do?

A. They were talking. The black man spread-eagle in front of the car, and while he was spread-eagle he swung around and struck the officer in the face with his fist.

Q. All right. And at that time what then did you observe?

A. At that point, the officer reacted, trying to subdue the gentleman, and during that time another man came running out from a parking lot across the street towards the officer and the gentleman in front of the police car.

Page 7.

SCANLAN - DIRECT

Q. And what happened?

A. I saw a hand come up, like this, and I heard a gunshot. There was another gunshot when the man got to the policeman, and the gentleman he had been talking to. And then the officer fell down on the sidewalk and the man walked over and was standing at his feet and shot him twice. I saw two flashes.

Q. And did you know whether or not any of those shots -- you were pointing -- first of all, for the record, when the man came over from the parking lot, you were demonstrating something with your hands. Will you show the jury again?

All right. You're indicating for the record, the index finger pointed forward, thumb pointed in the direction of the ceiling, and your three fingers, remaining three fingers cupped.

Then you stated that there was a shot, one shot, and then another shot you heard, and then the officer falling.

A. Yes, sir.

Q. And then the man went over and pointed down?

A. Yes, sir.

Page 8.

SCANLAN - DIRECT

Q. And then you heard two more. Are you sure of that two. Was it more or less, or what?

MR. JACKSON: Your Honor, I'm going to object. He's just testifying now.

MR. MCGILL: I'm repeating what he said.

MR. JACKSON: Objection.

A. It could have been two or three. I remember seeing two flashes.

Q. Do you know whether or not any of those shots hit the officer?

A. Yes, sir. I could see that the one hit the officer in the face.

Q. How?

A. Because his body jerked. His whole body jerked.

Q. His body jerked?

A. Yes, sir.

Q. Where was he then, when his body jerked, after the shot?

A. Where was the officer?

Q. Yes.

A. He was laying on the sidewalk, face up.

Page 9.

SCANLAN - DIRECT

Q. Now, at the time -- I think you used the word -- well, first of all, with the Court's permission, would you come down. I'm going to ask for a demonstration, Mr. Scanlan. I'm going to ask you to demonstrate what you meant -- just do it right here.

A. Okay.

Q. And you, for this matter, sir, for this particular time, you'll be the man that the police officer was talking to. And when you said he was, I think you said spread-eagle, he fell or something like that?

A. Yes, sir.

Q. Okay. And would you demonstrate what the police, excuse me, what this man did, and if you could, would you demonstrate the force that you remember from what you observed, and my hand here will be the officer's face. Will you demonstrate what that man did?

MR. JACKSON: Objection. He could not possibly demonstrate the force used, your Honor.

MR. MCGILL: He can certainly demonstrate what he observed.

MR. JACKSON: He cannot. I object.

Page 10.

SCANLAN - DIRECT

THE COURT: Go ahead. 0bjection overruled.

A. He was spread-eagle. He fell on the front of the car, and he spun around like this.

Q. Okay. Now, you've indicated there was a closed fist, at least your demonstration was a closed fist in your right hand.

A. Yes, sir.

Q. Was that what the man had?

A. Yes, sir.

Q. Okay. You may go back there, please. Now, at the time that the officer was struck -- do you remember what part of his face he was struck?

A. Yes, sir. It was his right side of his face.

Q. Do you recall where?

A. Between the right eye and the cheek.

Q. You're indicating with your right hand, index finger, right portion of an area on your cheek, below I guess it would be below the temple area, but on the cheek, right-hand side of the face in front of the ear. At the time the officer was struck, did his face -- his body make any movement?

Page 11.

SCANLAN - DIRECT

A. Yes, it sent him backwards, he flinched. His face was thrown to one side.

Q. You said the police officer responded and attempted to subdue him. What did he do?

A. He pulled out a flashlight or billyclub, and reacted by trying to subdue the man, by striking him above the shoulders.

Q. Okay. Was it at this time, while he was doing this, you saw the young man from the parking lot running across the street?

A. Yes.

Q. Now, what did you then do after you saw the officer shot? First of all, if you recall, in what direction was the officer's back to the man who was running across the street, and who shot him?

A. His back was towards him.

Q. Was towards the man who shot him?

A. Yes, sir.

Q. Now, after the man fell down, the police officer fell down, as a result, and then the man went over and fired at him some more, what did you then do?

A. I then took a left turn on 13th Street, and went to find a police van to bring a police officer back to the shooting.

Page 12.

SCANLAN - DIRECT

Q. And were you able to do that?

A. Yes, sir.

Q. Now, would estimate the entire time, really, that you had this particular scene in view?

A. When I came to the traffic -- the traffic light had just turned red, so maybe 30 seconds at the most.

Q. No more than that; though?

A. No, no, sir.

Q. So you had him in your view for a relatively short time; is that correct?

A. Yes, sir.

MR. MCGILL: Thank you. Cross-examine. I do have one other question, sir.

Q. Are you able to identify anybody, either the driver, or the man who ran over and shot the police officer?

A. No, sir.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION

BY MR. JACKSON:

Q. Mr. Scanlan, where were you coming from, sir?

A. I just dropped a friend off at the Academy House Apartments.

Page 13.

SCANLAN - CROSS

Q. Had you been drinking, sir, or had any other intoxicants?

A. Yes. I had a few cocktails.

Q. How much earlier from the time you arrived at that intersection?

A. A couple of hours before then.

THE DEFENDANT: Mr. Scanlan, could you describe the second man that you saw run across the parking lot?

THE COURT: Just a minute, Mr. Jamal. Mr. Jamal, please take a seat.

THE DEFENDANT: I'm cross-examining this witness.

THE COURT: Take a seat, Mr. Jamal, please.

THE DEFENDANT: Can I finish my cross-examination, and then sit down?

(Where upon the jury was excused from
the courtroom and the following took place:)

THE DEFENDANT: Can I finish my cross-examination?

What was the first man wearing, Mr. Scanlan?

Page 14.

SCANLAN - CROSS

What kind of clothes did he have on? What was the second man wearing? Judge, he's not answering my questions.

THE COURT: I know he's not.

THE DEFENDANT: Why isn't he?

THE COURT: Because I already told you before when we were at side bar, that I expected you to behave yourself.

THE DEFENDANT: I'm behaving myself. I'm fighting for my life.

THE COURT: I know you are, so is Mr. Jackson.

THE DEFENDANT: How the hell do you know?

THE COURT: All right. That's it.

THE DEFENDANT: How do you know what he's doing?

THE COURT: Sheriff, take him out. You're being removed because you're disruptive to the Court proceedings.

THE DEFENDANT: I'm not disruptive. I'm not disruptive. I'm fighting for my life. This is my trial.

THE COURT: Take him out, take him upstairs. When you learn --

Page 15.

SCANLAN - CROSS

THE DEFENDANT: Your Honor, you're behaving in a way to get me killed, get me convicted, aren't you?

THE COURT: Take him out of the courtroom. Take him out of the courtroom.

THE DEFENDANT: I do not want him working here. I want him out of here. I do not want him to participate in this damn sham. Okay?

THE COURT: Okay.

THE DEFENDANT: Then send him out, if it's okay.

THE COURT: All right.

MR. JACKSON: Your Honor, before we -- could I -- there are some notes of testimony here and Mr. McGill has a report.

THE COURT: All right.

(Side-bar conference, as follows:)

THE COURT: I brought the attorney to side bar to see whether or not Mr. Jackson wants me to once again read this same statement.

MR. JACKSON: I think so, Judge.

MR. MCGILL: I would ask that, too, Judge.

Page 16.

SCANLAN - CROSS

THE COURT: All right. Did you have something else?

MR. JACKSON: Yes. I just wanted to -- because I don't have a copy of the statement, I would like to take maybe a minute, just to look through the statement.

MR. MCGILL: Sure.

MR. JACKSON: Because I don't have it.

(End of side-bar conference)

THE COURT: Let me know as soon as you are ready.

(A short recess was taken.)

(Whereupon the jury entered the courtroom and the following took place:)

THE COURT: Members of the jury, you are not to draw any adverse inferences from the absence of the defendant. You should further refrain from any sympathy, bias, or prejudice for or against the defendant.

MR. JACKSON: May I proceed, your Honor?

THE COURT: Yes.

Page 17.

SCANLAN - CROSS

CROSS-EXAMINATION (CONT'D.)

BY MR. JACKSON:

Q. Mr. Scanlan, you indicated -- just to get us back in posture -- you dropped a friend off at the Academy House, you had a few cocktails, maybe a couple hours earlier. Is that right?

A. Yes, sir.

Q. You made your observation of what you saw from the intersection of 13th and Locust, and as I understand it -- well --

MR. JACKSON: Do we still have the diagram?

THE COURT: Will you turn it around so the jury can see it?

MR. JACKSON: I'm sorry. My apologies.

THE COURT: Can everyone in the jury see it? No? Turn it around, please.

Q. Mr. Scanlan, may I ask you to approach that diagram, please, and there is a pointer there you can use.

Now, so you will at least be oriented, this is Locust Street, and this is 13th Street. I believe you would have been traveling in an easterly direction at about right here; is that correct?

Page 18.

SCANLAN - CROSS

Q. Does that diagram fairly and accurately demonstrate or depict the scene as you saw it back on December 9th, 1981?

A. Yes, sir.

Q. Now, when you were at that stop light, sir, did you take any notice of the police car or any individuals before the shooting occurred?

A. On --

Q. Strike that. Let me do it this way. When you came to the intersection, did you immediately look ahead and see the police officer and the man?

A. Yes, sir.

Q. Now, when you saw them, you looked ahead, the man, was standing out in the street already; is that right?

A. Yes, sir. He was already out of the car.

Q. He was already out of the car?

A. Yes.

Q. And the police officer approached him? Is that correct?

A. Yes, sir.

Q. And the police car was behind the Volkswagen; is that correct?

Page 19.

SCANLAN - CROSS

A. Yes, sir, that's correct.

Q. Can you estimate for us the distance from where you were parked and where the police officer and the driver of the Volkswagen were parked?

A. I was stopped right here, and the two gentlemen were talking over here.

Q. I see. Do you know, as far as you're concerned, could you estimate the distance that was?

A. Maybe two car lengths.

Q. Two car lengths?

A. Yes.

Q. Now, my question about it being two car lengths -- for instance, you were to the west of Locust -- I'm sorry, west of 13th Street; is that right.

A. I was first --

Q. Go ahead.

A. First car at the traffic light.

Q. First car?

A. Yes.

Q. So we can assume that 13th Street is at least one car length; is that right?

A. That's correct.

Page 20.

SCANLAN - CROSS

Q. So, on Locust Street was there any cars behind the police car?

A. I don't believe so, no.

Q. No cars behind the police car?

A. No.

Q. And was the police car right at the corner, was it some distance from the corner?

A. Some distance from the corner.

Q. How much, as best you can estimate? How many car lengths from the corner was the police car parked?

A. One, at the most.

Q. One at the most. Any other individuals on the street, excluding for the moment the shooter? Anyone else -- did you see anyone else on the street at that time?

A. All I focused on was the policeman and the gentleman in front of the car.

Q. You may have focused on the policeman and the other man, did you see anyone else on the street?

MR. MCGILL: Objection. He answered it.

MR. JACKSON: He said he didn't focus on it.

Page 21.

SCANLAN - CROSS

THE COURT: He said he couldn't see anybody, could he? Objection is sustained.

A. I didn't see anyone else.

Q. So there was no one else on the street, then, sir?

MR. MCGILL: Objection, he didn't say that.

THE COURT: Objection sustained.

Q. Did you hear anyone else talking, sir?

A. No, sir.

Q. Now, I'm just going to ask you a few questions so that you can get the relative positions on the people on the diagram, and then I'll ask you to go back to your seat.

When you first saw the man that ran across the parking lot, where did you first see him?

A. He was coming -- running out of the parking lot.

Q. Do you know from what position in the parking lot, what location?

A. No.

Q. And the police officer and the driver of the Volkswagen, where were they standing when you first saw them?

Page 22.

SCANLAN - CROSS

A. In front of the police car.

Q. And that would have been in front of the police car, but behind the Volkswagen?

A. Yes, sir.

Q. So they were out of the traffic lane?

A. Yes.

Q. Okay. Fine. Will you return to your seat, please?

Now, when the police officer approached the driver of the Volkswagen, the driver of the Volkswagen was immediately directed to spread-eagle; is that right?

A. A few seconds after that.

Q. There was some conversation?

A. Yes, sir.

Q. Did you see the driver of the Volkswagen pull out any cards, any wallet?

A. I don't remember.

Q. You were in a position to see it, though, weren't you?

A. Yes, sir.

Q. And you didn't see his hand pull out anything from his pockets or his wallet or anything like that, did you?

Page 23.

SCANLAN - CROSS

A. I think the officer was looking at his driver's --

Q. You think?

A. He was looking, I think, at a piece of paper in his hands.

Q. In whose hands?

A. In the police officer's hands.

Q. All right. And after that the man spread-eagle?

A. Yes, sir.

Q. On the front of the vehicle or -- let me do it this way.

Where were his feet, in the traffic lane, or in between the cars?

A. Right in front of the car, in the middle of the cars.

Q. And the police officer patted him down--or you tell me.

A. No, I don't remember that, no.

Q. He was spread-eagle and all of a sudden he swung backwards?

A. Yes.

Q. He swung at the officer; is that right?

A. Yes.

Q. Today, you're testifying that he hit the officer. Are you certain that he hit the officer?

Page 24.

SCANLAN - CROSS

A. Yes.

Q. Did you tell the police that?

A. Yes, I did.

Q. Or did you tell them that he swung at the officer?

A. I may have used that phrase, but he did strike the officer.

Q. Okay. But it was your intention if you said swung you meant that he hit him.

A. Yes.

Q. Fine. After he swung at the officer or hit the officer then the officer pulled a blackjack out; is that right?

MR. MCGILL: Objection. He didn't say that.

THE COURT: Well, rephrase your questions.

Q. Did the officer pull a blackjack out?

A. It was either that or a flashlight. I can't be sure.

Q. You told the police it was a blackjack, didn't you?

A. I believe so, yes.

Page 25.

SCANLAN - CROSS

Q. But you're saying it may have been -- it may have been a flashlight?

A. Yes.

Q. Then he hit the man several times?

A. Couple of times on the shoulders.

Q. Two or three times?

A. Three at the most.

Q. And you're saying you know for certain it was in the shoulder area?

A. Between the shoulders, the neck and the arm.

Q. How about behind the ear?

A. I can't say for sure.

Q. These blows that the officer struck, were they right in succession or was there time in between each of them?

A. They were in succession.

Q. After he struck the man, the man went -- his knees buckled; is that right?

A. Yes, sir.

Q. He began to fall from the automobile?

A. He didn't fall, his knees kind of buckled, he ducked down kind of.

Page 26.

SCANLAN - CROSS

Q. By the way, can you describe that man for us? The driver of the Volkswagen.

A. He had on a coat that came down almost to his kneecaps.

Q. Do you know what color?

A. It was dark green, maybe.

Q. Height?

A. Looked like an Army coat.

Q. Height?

A. Maybe five-ten.

Q. Weight?

A. A hundred and seventy pounds.

Q. You saw Mr. Jamal sitting here a moment ago, didn't you?

A. Yes, sir.

Q. Was it about his height and weight?

A. I can't say for sure.

Q. Did you see the age?

A. The age?

Q. I mean, could you estimate the age?

A. No.

Q. Was the man heavy-set, thin, or -- I know you've given us the height and weight but just --

Page 27.

SCANLAN - CROSS

A. Regular build.

Q. Do you recall what kind of pants he had on?

A. No, I really couldn't give you that.

Q. Now, it was shortly after the police officer -- the man started -- his knees started to buckle that you saw this other man come from the parking lot and you saw this other man come from the parking lot -- you didn't see a gun in his hands?

A. Not until he got over -- all I saw was the hands together, the motion like this.

Q. Okay.

MR. MCGILL: Indicating the index finger pointed forward, your Honor, sweeping motion from his leg, throughout the front of his body.

MR. JACKSON: Fine.

Q. The man who ran from the parking lot got over -- he was in the street; is that right?

A. Yes.

Q. The police officer and the other man, they were also in the street; is that correct?

A. Right in front of the car.

Q. Right in front of the car?

A. Yes.

Page 28.

SCANLAN - CROSS

Q. I. believe it's your testimony -- or you -- correct me if I'm wrong -- that you heard a shot; is that right?

A. Yes, sir.

Q. You didn't see the flash at that shot, did you?

A. No.

Q. After you heard that first shot the officer went down; is that right?

A. No, there was, I believe, another shot. It was about five or six seconds, then the officer went down on the sidewalk.

Q. Maybe I'll do this, Mr. Scanlan. Would you take a moment to review both of these statements.

MR. JACKSON: I can have them marked, if you like, your Honor. I think it would be 6 and 6a, for identification purposes.

(Discussion off the record)

Q. Mr. Scanlan, the first one you see is indexed as 6, and then 6a, a hand-written statement. Just take a moment to review that, please.

I'm sorry. Did you look at the hand-written copy, as well? It's right underneath of it, I believe. I

Page 29.

SCANLAN - CROSS

wanted you to review it for the content, to perhaps refresh your recollection.

A. Is that it?

Q. Yes. I want you to look through it, so that your recollection may be refreshed, as to what you told the police that night.

Now, you've also provided a diagram to the police; is that right?

A. Yes, sir.

Q. And in that diagram, can you tell the jury, first of all, where in fact you've indicated that there were other people around.

A. All I noticed were the three -- the three gentlemen.

Q. But there is a diagram there that you've given; is that correct?

A. Okay, yes, besides those three -- yes, I do remember.

Q. Yes. Can you describe to the jury where you placed those other people?

A. Two people were to the left of my car.

Q. And that would have been where, sir?

Page 30.

SCANLAN - CROSS

On the northwest corner of 13th and Locust Street?

A. I believe so.

Q. Right here, Club Whiskers, right?

A. Yes.

Q. That would have been -- excuse me, maybe you could come down and show them. I don't want to get in the way of the jury.

If you can, use a pointer, perhaps, and stand to the side and do it.

A. Right here.

Q. Two people on the northwest corner. Do you remember whether it was a man or a woman or two men?

A. No.

Q. Was there another person there someplace?

A. This corner.

Q. That would be the southwest corner. And anyone else?

A. No.

Q. Okay. Return to your seat, please.

Page 31.

SCANLAN - CROSS

Q. Now, Mr. Scanlan, you've had an opportunity to review those two statements, have you not?

A. Yes, sir.

Q. Now, those two statements are indeed your statements that you gave to the police; is that right?

A. That's correct.

Q. The first statement being on December 9, 1981; is that correct?

A. Yes.

Q. The second statement being on December 12th, 1981; is that correct?

A. I'm not sure of the exact date, but --

Q. Well, for the purpose of the record, would you look at it, so that we're certain, the hand-written statement.

A. December 11th.

Q. December llth, fine. Now, at the time that you gave those statements to the police, you gave those statements because you believed what you said to be true; is that correct?

A. That's correct.

Q. And would it be fair to say that your recollection of the facts were fresher at that time than they are today?

Page 32.

SCANLAN - CROSS

A. Yes.

Q. So that as an example, you told the police then that there were people on the corner, and today you said you didn't remember, so that we can assume that your recollection was indeed fresher than it is today?

A. Yes, sir.

Q. Do you also remember testifying in another related matter on March 29, 1982, before the Honorable Meyer Rose?

A. Yes, sir.

MR. JACKSON: And I refer you to Page 119, of the notes of testimony, Mr. McGill.

Q. See if this refreshes your recollection, middle of the page: "Is it your testimony that the first time the officer was on the sidewalk was when he fell as a result of being struck by that first bullet?

A. "Answer: Yes, sir."

Do you remember giving that testimony?

A. Yes, sir, I do.

Page 33.

SCANLAN - CROSS

Q. So that the officer -- you testified earlier this year, that the officer fell after the first bullet? Is that correct?

A. That's correct.

Q. So would it be fair to say, with refreshing your recollection with that statement, that the officer did indeed fall after the first bullet, after the first shot?

A. He didn't fall immediately down on the sidewalk. It was a few seconds. There was confusion when all three of them were in front of the car. He didn't fall directly down, as a result of the first shot.

Q. Well, maybe you can explain that. Let me read this again to you, sir.

"Question: Is it your testimony that the first time the officer was on the sidewalk was when he fell as a result of being struck by that first bullet?

"Answer: Yes, sir."

Explain that to me, sir. If you're saying he didn't fall all the way on the sidewalk, I don't understand.

Page 34.

SCANLAN - CROSS

A. I just mean he didn't fall immediately after that first shot. There was a couple seconds, that's all.

Q. Okay.

A. That's all I'm trying to say.

Q. But there was not another shot fired before he hit the ground, though?

A. There could have been. I really don't know.

Q. So your best recollection is that he fell after the first shot?

A. Yes, sir.

Q. And again, you just heard that first shot; is that correct?

A. Yes, sir.

Q. And you saw no flash that first time?

A. No.

Q. And it was only those subsequent shots that you saw flashes; is that correct?

A. That's correct.

Q. And by the way, do you know whether it was the driver or whether it was the man who ran from the parking lot who fired the shots?

A. It was the man that ran from the parking lot.

Q. Do you remember telling the police -- and you can refer to your statement, sir. Could I see it, and I could point it out to you?

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Page 7 of the hand-written statement. Please read out loud, the first question and answer.

A. "Did you see this male shoot the officer?

"No, all I saw was the flash from the gun. I didn't follow the flash back to the gun, but when I saw the guy running across the lot towards the cop, I knew he was going to help the guy that was getting hit from the billy club."

Q. Okay. So would it be fair to say based on the fact that you gave that statement on December 11, 1981, when you were asked specifically did you see who fired the shot, you said no?

A. Well, what I meant, I couldn't identify them. I was worried about identifying the person. As of now, I still can't identify them, only through clothing.

Q. You were asked earlier in that interview, as well as the interview on December 9th, if you could identify anybody and you told them no, right?

A. Right.

Q. That question specifically asked, "Did you see who fired," not if you could describe, not if you could identify. It said, "Did you see who fired the shot."

A. Well, I saw --

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MR. MCGILL: Objection, your Honor.

THE COURT: Okay.

A. I saw the firer of the shot, because I saw the right hand extended, and I saw two flashes, and the officer's body jerk.

Q. All right. Let me have the statement back again.

Now, when the shooting took place, the first shot, when you heard the first shot the officer was in the street, everybody, the participants were in the street; is that right?

A. That's correct.

Q. And after you heard the first shot, the officer, I take it, stumbled onto the sidewalk?

A. Yes, sir.

Q. And the man who was in the Volkswagen, the driver of the Volkswagen, where was he exactly?

A. He was standing on the curb, right next to the sidewalk.

Q. When the shooting took place?

A. Yes, sir.

Q. Now, explain to me -- and I'm not being critical-- I thought it was your testimony that the man had his feet in the street, spread-eagle, over the top of the police car, and after the police officer struck him a

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few times, that's when the man came over with the gun?

A. Yes, sir.

Q. How did the man get from -- and I know you said that he started to go down, his knees buckled. At what point did he move from that point and get over to the curb?

A. When the officer fell back onto the sidewalk, that's when he stood up in an erect position and was standing on the curb.

Q. He followed the officer?

A. No, he didn't follow him, but he wasn't up on the sidewalk.

Q. It's probably me, Mr. Scanlan. The officer was shot and he staggered towards the sidewalk. That would have blocked the driver of the Volkswagen from going to the sidewalk, would it not?

A. No.

Q. Well, could you -- I really don't how how it happened. Could you explain how it -- the dynamics of all that.

Q. When the guy came running out of the parking lot, came across, shot the officer, there was some confusion. Next thing I remember is the policeman --

Q. When you say --

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MR. MCGILL: Objection, may he finish his answer.

MR. JACKSON: I wanted him to explain "confusion."

MR. MCGILL: Let him finish.

Q. Go ahead.

A. The three of them were still there, and then the officer fell down and the man walked over and stood at his feet, and fired, twice, two or three times.

Q. Okay. Now, did you see what was in the hand of the driver of the Volkswagen?

A. No, I wasn't looking at him.

Q. Did you see him motion his hand?

A. No.

Q. You didn't see it?

A. My attention was focused on the officer.

Q. So, you're saying that you don't know what the driver of the Volkswagen was doing?

A. Only that he was standing there.

Q. How close to the officer was he?

A. Six or eight feet.

Q. Six or eight feet?

A. Yes, sir.

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Q. The man that you said ran from the parking lot, how close was he to the officer?

MR. MCGILL: Objection. At what time? When he was on the sidewalk?

MR. JACKSON: Same time.

MR. MCGILL: On the sidewalk?

MR. JACKSON: Yes.

THE WITNESS: Less than a foot away.

BY MR. JACKSON:

Q. The relative positions of the three people, you had -- as far as going from, I guess, south, north -- we will do it this way: The driver of the Volkswagen was right near the sidewalk?

A. Yes, sir.

Q. The officer, immediately after the shooting was on the sidewalk?

A. Laying down, sir.

Q. Laying down. And the shooter was where?

A. At his feet.

Q. At his feet. So the shooter and the driver of the Volkswagen were relatively close to one another?

A. Yes, sir.

Q. How close, sir?

A. Five or six feet.

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Q. The three people, would they have formed a triangle in terms of where their positions were? Would that be accurate that they formed pretty much of a triangle?

A. I don't know if it was a triangle, but all three of them were there on the sidewalk.

Q. Okay. The man who ran across from the parking lot, can you describe him to us, sir?

A. He had on a -- I think a red-and-blue striped coat or sweater.

Q. Now, who told you red and blue?

A. No one.

MR. MCGILL: Objection.

Q. You never told -- you gave the police a different description.

A. Well, I just remember multi-colored and stripes, big stripes.

Q. You're saying to us now, nobody told you red and blue?

A. No, sir.

Q. You remember the statement you gave to the police? You never said red and blue, did you?

A. I think I said red and black, or yellow and black.

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MR. MCGILL: Page 2, first statement.

MR. JACKSON: Pardon me?

MR. MCGILL: Page 2, first statement.

MR. JACKSON: Indulge us for one moment, sir.

Q. See if you remember this question and answer, sir, back on Page 6 of the statement that you gave on 12-12-81: "Question: Describe the second male that ran toward the officer."

"I really only saw him from the side, negro male, about five-ten, maybe a hundred and eighty pounds. I couldn't say if he had a beard. I saw he had long, wide, sideburns, dark skin, wearing a black knit cap, like over the back of his head, holding the hair in. He had a long-sleeved sweater on. I think it was red and black, or yellow and black. I don't remember what the color of his shoes and pants were."

Do you recall that statement, sir?

A. Yes, I do.

Q. So no matter what he had on, you're saying he had a sweater on; is that right?

A. A sweater or jacket. I can't be sure.

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Q. So, now it's either a sweater or a jacket?

MR. MCGILL: Objection, sir, argumentative.

THE COURT: Sustained.

Q. Did you tell the police it was a sweater or jacket?

A. I believe I said sweater.

Q. But now you remember it?

A. No, I just said it was either a sweater or a jacket. I can't be sure.

Q. Okay. Let me go over a few other things as well, sir.

So that I'm also clear, Mr. Scanlan, when you heard the first shot, did you see the hands of either the driver of the Volkswagen or the man who was running across the street?

A. I saw the hands of the man running across the street.

Q. And I believe you indicated in response to Mr. McGill's questioning, that you saw it raised as if to fire a weapon.

A. Yes, sir.

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Q. But you did not see the flash at that time?

A. No, I didn't.

Q. You were in a position to see it, if there was a flash; is that correct?

MR. MCGILL: Objection.

THE COURT: Sustained.

Q. You were in a position to see his hands?

A. I saw the hand come up, yes.

Q. And when the hand stopped coming up, you saw the hands, did you not?

A. I wasn't looking at the hands then.

Q. What were you looking at?

A. I didn't know what was about to happen.

Q. No. Well, what were you looking at then?

A. I was looking at the three gentlemen standing there.

Q. When you saw his hands come up, you stopped looking at his hands all of a sudden for no reason?

A. Well, I didn't know that a gunshot was about to go off.

Q. I understand.

A. No, I don't remember looking at his hands.

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Q. But you never took your face away -- you never took your eyes away from the three of them?

A. No.

Q. And when you say him raise his hand, this man who was running across the lot, how close was he to the officer when you saw him raising his hand?

A. Three or four feet.

Q. So, you could see the officer, the man who ran across the street, as well as the driver, at the same time, could you not?

A. That's correct.

Q. And you only heard a shot?

A. Yes.

Q. And it came from the direction of those three people?

A. Yes, sir.

Q. You're certain of that, sir?

A. Yes.

Q. Okay. Now, the hairstyle of the man who ran across from the parking lot, could you tell us what that was? Did you notice his hairstyle?

A. Just the black cap that he had on.

Q. Pardon me?

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A. Just the black knit cap holding his hair.

Q. Do you recall telling the police that the man had an Afro haircut?

A. Yes.

Q. So that's what he had, an Afro haircut; is that right?

A. Yes, sir.

Q. And the man who the police stopped, he had dreadlocks; is that right?

A. Yes, sir.

Q. And you remember that very clearly?

A. Yes, sir.

Q. And do you recall seeing, looking to see if there was anyone in the police car?

A. No.

Q. Did you see anyone in the Volkswagen?

A. No.

Q. After the shooting, did you see anyone run from the scene?

A. No. That's why I took a left-turn, to look for the police.

Q. And you went for the police immediately?

A. Yes, sir.

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Q. And when you returned, someone pointed someone out in a van; is that right? -- to you?

A. Yes, sir.

Q. And the man that you saw in the van, was he handcuffed?

A. I believe so, yes.

Q. Was he laying on his back?

A. He was kind of crouched up in a ball.

Q. In a ball. And you told the police that as far as you knew, that was the man who was driving the Volkswagen; is that right?

A. I can't say for sure.

Q. But that's what you told the police: isn't it?

A. Yes.

Q. You told the police that was the man, as far as you could tell, who was driving the Volkswagen?

A. Yes.

Q. Did you see the other man, the man whom you said ran across the street?

A. No, I wasn't sure what happened to either one of those --

Q. No one -- strike that.

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By the way, at any time did you see the officer fire his weapon?

A. No, sir.

Q. Pardon me?

A. No, I don't remember that.

Q. You don't remember?

A. No, I didn't see him fire it.

Q. But you pretty much had the officer in sight during this entire incident, didn't you?

A. Yes, sir.

Q. Now, you indicated that after the -- you heard the first shot, and then after you saw a man stand over top of the officer and fire two or three times. The officer was down on the ground?

A. That's correct.

Q. And after the man fired two or three times, what did that man do?

A. That's when I left.

Q. Okay. Did you see if he walked away, ran away?

A. I didn't see.

Q. You have no idea at all?

A. No idea.

Q. Now, before you left the scene, and you said in response to Mr. McGill's questions that you know

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that the man was shooting the officer because you saw his body jerk.

A. That's right.

Q. Did you see the officer pull any weapon, do anything at all?

A. No, sir.

Q. The instrument that you saw the police officer hitting the driver of the Volkswagen with, whether it was a blackjack or flashlight, could you estimate for us the length?

A. I guess about this long.

MR. JACKSON: Would it be fair to say that's about 18 inches, Mr. McGill?

MR. MCGILL: 14, 18 inches, probably.

MR. JACKSON: Fine.

Q. He used one hand to wield that weapon, that instrument with?

A. Yes, sir.

Q. Did you ever see what happened to it?

A. No.

Q. Did you notice whether in fact the officer dropped it after you heard the first shot or --

A. No.

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Q. --- or whether he was staggering --

A. No, I don't.

Q. No recollection. Fine.

Mr. Scanlan, do you remember the driver of the Volkswagen -- again, you recall his knees buckling, right? You knew when he was being struck?

A. Yes, sir.

Q. Do you recall when or if he stood erect?

A. Just when he was talking to the policeman.

Q. Okay. But that was before he was hit, though; is that right?

A. Right.

Q. So after that you never saw this man stand up again. When you said he was on the car and the officer struck and his knees buckled, he never stood erect again, did he?

A. Well, he did when the officer was shot.

Q. Pardon me?

A. He did when the officer was shot. The two of them were standing on the street -- on the curb.

Q. This was after the man had shot two or three times at the officer?

A. Yes. sir.

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Q. He did stand up then?

A. He was standing then, yes.

Q. Fine.

Now, do you recall telling the police back on 12-12-81 -- and I'm reading a portion of the statement, Mr. McGill, Page 5 --

MR. MCGILL: Yes, sir.

Q. -- "The next thing I know, I saw the Officer laying there, then one of the males was standing over the officer. I don't know which one it was. Then I saw two or three flashes, and heard the shots." Do you remember telling the police that?

A. Yes, sir.

Q. So why is it today you know who it was that fired, but you didn't tell them then?

A. What I meant was I couldn't identify them, I couldn't tell which of the two it was.

Q. You couldn't tell whether it was the driver?

A. Even today, I couldn't identify anybody at that point. And that's the way I meant it. I couldn't identify anybody. The only description -- the one running out of the parking lot --

Q. You can describe one as the runner, and one as the driver, or something like that.

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A. Yes. Now -- in those terms, it was the driver -- I mean the runner, the one who ran out of the parking lot.

Q. Weren't you asked specifically to describe him, and you described him, and you indicated that you couldn't identify anyone, but you're saying now that when you said you didn't know which one, you meant you couldn't identify them?

MR. MCGILL: I would have to object. First of all, he's answered that question.

THE COURT: Let him answer one more time.

A. I mean, from reading the papers and all that, I couldn't say the two names -- which of the two names it was.

Q. From reading the paper, But we're not asking you --

A. I guess I was confused when they were asking the questions, and that's why I said I didn't know which of the two it was.

Q. What paper are you talking about reading? The newspapers?

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A. Yes, sir.

Q. But you were there, weren't you?

A. Yes.

Q. You didn't get your facts from the newspaper, did you?

A. No.

Q. When you said again in the statement, "But I don't know which male had the gun" --

MR. MCGILL: I would object. So that he's aware, there were two statements.

MR. JACKSON: I'm sorry.

MR. MCGILL: I'm not asking you to do that. This is the second statement?

MR. JACKSON: Yes.

MR. MCGILL: So he knows what order they were.

MR. JACKSON: 12-12, I'm sorry, December 12th.

A. Yes.

Q. You gave a statement to another detective -- sorry, I don't know the name.

You said, again, "I saw the gun in one of the males' hand, but I don't know which male had the gun."

You're saying that you only meant that you couldn't identify them?

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A. Yes. I couldn't give either of the two names.

Q. Anyone ask you for names?

A. No. The night of the shooting when I gave my statement I believe I said that the guy who ran across the parking lot. But then a few days later after it being all in the papers and the T.V. I couldn't give the name, I couldn't identify anybody and still can't. That's why I said that's why I wasn't sure which --

Q. Did the police ever ask you for a name?

A. No.

Q. What made you think they wanted you to identify them by name?

A. I guess so that I could identify that particular person. See, I could only identify them as to clothing.

Q. By the way, so that we have the relative heights of the individuals, the driver of the Volkswagen, was he taller or shorter than the police officer?

A. He was taller.

Q. The man who ran across the street -- we can call him the runner or the shooter -- was he taller or shorter than the police officer?

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A. I can't say for sure.

Q. So, you couldn't say whether he was taller or shorter than the driver of the Volkswagen either, I take it.

A. Right.

Q. Now let me also refer you to 12-12-81, Statement Page 5, last question and answer.

"Describe the first male that the officer stopped in the Volkswagen."

"Negro male, about five-ten or a little taller, because he was never fully erect."

Do you remember saying that?

A. Yes, sir.

Q. But today, you're saying that's incorrect, that he really was fully erect at some point?

A. Yes, right at the end of the shooting.

Q. So when you told the police that, that wasn't quite right?

A. Well, I was thinking when the officer brought him over, and he was spread-eagle, he was never really standing fully --

Q. The driver of the Volkswagen, did he have a hat on?

A. No, sir.

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Q. You're certain of that, aren't you?

A. Yes, sir.

Q. And the man who ran across the street from the parking lot had a black cap on?

A. Yes, sir.

Q. And you're certain of the color and you're certain that he had a cap on?

A. It was definitely a cap on.

Q. By the way, do you remember -- and I don't mean to be ridiculous -- how long it took him to get from the parking lot to where the officer was? Half-second, or second, or longer?

A. Two seconds.

Q. Was he walking or running?

A. Picked up from a walk into a run.

Q. Okay. At what point did you see him go from a walk to a run? I mean, you must have seen him walking at some point and go some distance, and then you saw him run.

A. I saw when he reached the street, he picked up to a run. He ran across --

Q. And you saw him walking in the parking lot; is that right?

A. Yes, walking in the parking lot.

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Q. And there was a light in there which you could see into the parking lot?

A. Yes, there was a street light. I'm not sure where it was.

Q. Now, let me remind you of this, again -- Page 6, the same statement given on December 12, 1981 -- "Describe the second male that ran toward the officer."

"Answer: I really only saw him from the side."

I read this just to remind you -- "I really only saw him from the side; negro male about five-ten, maybe a hundred and eighty pounds." The other male that you've already indicated and we understand you've indicated that he was five-ten. So you're saying that as far as you could tell, they're both about the same height?

A. Yes.

Q. But you're also certain that the man who fired, the weapon the shooter, had an Afro hair style and the man who drove the Volkswagen had dread locks?

A. That's correct.

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Q. You never actually saw the gun, right?

A. No, sir.

Q. When you left the scene, you know, you made your left on 13th Street, and I think you went to Juniper and Walnut, or something like that to get the police, do you recall if anyone ran to the scene? When I say the scene, right where those cars were, did you see anyone move in that direction?

A. No, sir.

Q. Do you recall seeing anyone walking on Locust Street on either side, either the north side or the south side of the street?

A. No, sir.

Q. I assume because you went to look for the police, but I'm going to ask you a ridiculous question anyway: Did you see any police on that street other than the one officer?

A. No, sir.

Q. Do you recall, possibly, what the number of that police car was?

A. No, I have no idea.

Q. Do you recall whether or not the police car or the Volkswagen was running, the motor was running?

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A. No, I couldn't say for sure.

Q. And you're certain there were no cops on the street, behind the police car --

MR. MCGILL: Objection, your Honor. He did not say certain.

MR. JACKSON: Sir, could you tell us?

MR. MCGill: He did not focus his attention on it.

Q. Could you tell us?

A. I don't remember. I'm pretty sure it was the police car that was the first car on the curb.

Q. Because you could see so clearly?

A. Yes, sir.

Q. And you don't recall seeing anyone, I guess, that would be on the southeast corner of 13th and Locust; is that right?

A. That's correct.

MR. JACKSON: No further questions. Thank you, sir.

REDIRECT EXAMINATION

BY MR. MCGILL:

Q. Mr. Scanlan, you've been asked many questions about descriptions, time, facial parts, people on the

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street. Approximately how much time did you have this scene in view at the very most?

A. I would say about 30 seconds, half-a-minute.

Q. Perhaps even less?

A. Perhaps.

Q. Were you particularly interested in focusing your attention as to who was on the street --

MR. JACKSON: Objection.

Q. -- or what cars were there?

MR. JACKSON: Objection, as to his interest.

THE COURT: Overruled.

Q. You may answer.

A. I'm sorry. Can you repeat that, please?

Q. Were you particularly interested in focusing your attention of who was on the street, or what cars were parked other than where the incident was?

A. Yes, sir.

Q. You were or you weren't?

A. No, I was directing my attention right at the police car. I'm sorry.

Q. You don't know whether or not there were people on these other corners: is that correct, sir?

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MR. JACKSON: Objection.

THE COURT: Overruled.

MR. JACKSON: Fine.

A. I do remember a few people, but I really wasn't paying attention.

Q. Mr. Scanlan, you did say a few things which I wanted to clarify, at least in my mind. You kept mentioning three people. Remember that? Three people?

A. Yes, sir.

Q. Now, when you say three people, what are you talking about?

A. The police officer, the driver of the Volkswagen, and the man who ran out of the parking lot.

Q. Okay. Now, you did have read to you several parts of the second statement you gave. Do you recall --

MR. MC GILL: May I approach the witness, your Honor? I ask that this be marked C-57. I have the one copy. Your Honor, may I approach the witness?

THE COURT: Go ahead.

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(Statement marked for purposes of
identification as Commonwealth's Exhibit 57.)

Q. Mr. Scanlan, I'm showing you what has been marked C-57, which has been referred to as your first statement. When was that given?

A. I guess about a half-hour or after -- December 9.

Q. 1981?

A. Yes, sir.

Q. You said a half-hour, what?

A. About a half-hour after the incident.

Q. Half-hour after the incident. Now, do you recall -- I'm referring to the first page, Mr. Jackson, of the first statement.

MR. JACKSON: Fine.

MR. MCGILL: The last eight or nine lines.

Q. Do you recall, "Then the guy running across the street" -- can you see that?

A. Yes, sir.

Q. "Then the guy running across the street, pulled out a pistol and started shooting at the officer. He had the gun pointed at the officer. He fired, while he was running, at the officer, and the officer fell

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down. Then he stood over the officer and fired three or four more shots, point blank at the officer."

Is that what that says?

A. Yes, sir.

Q. And you said that one-half hour after the incident?

A. That's correct.

Q. You mentioned a red and black, or red and blue, or something -- a sweater or a coat. Do you recall that? You didn't say coat, you said jacket. Sweater or jacket.

A. Yes.

MR. MCGILL: Would you show the witness C-34, the jacket in there, C-34. I'm sorry, C-54. There's a jacket in there.

Q. I'm showing you that jacket. Does that look at all familiar?

MR. JACKSON: Objection as to familiar, your Honor.

THE COURT: Overruled.

A. Yes, sir. I remember the stripes, the big stripes.

Q. Where did you see that before?

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A. From the man who came running out of the parking lot.

Q. Could you place that back in the bag.

MR. MCGILL: Referring to the proceeding for Mr. William Cook for punching the officer, Page 99.

MR. JACKSON: Fine.

Q. Do you recall this question and answer?

"Go on, and what did this other man do?

"Answer: This other man, next thing I heard was a crack, what sort of sounded like a crack. I don't know what it was. Then the officer fell down on the sidewalk and was laying there, when the gentleman walked over with the pistol, and fired two times, striking the officer. I noticed he hit the officer with the" --"I noticed the bullet hit the officer because his body jerked.

"Question: The same man who ran over and had his finger pointed forward, was standing over him shooting?

"Answer: Yes.

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"Will you please tell me where the officer was struck, what part of his body was struck by the other person.

"Answer: In the face."

Do you recall those questions and answers at that trial?

A. Yes, I do.

Q. Now, you stated that after the man who ran across the street shot the officer and before he fell there were a few seconds. Is that what you said?

A. Yes, sir.

Q. During the course of that time, did you have the officer's hands in view?

A. No, sir.

Q. As a matter of fact, did you really have the officer's hands in view, really, at any time during the time after the first shot to the time that you drove away?

A. No, sir.

Q. So would it also be fair to say that you're actually unable to tell whether or not the officer fired back?

MR. JACKSON: Objection.

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THE COURT: Overruled.

MR. MCGILL: Nothing further. Thank you.

RECROSS-EXAMINATION

BY MR. JACKSON:

Q. A few more questions, if you don't mind, Mr. Scanlan.

Q. You indicated that you kept all three individuals in view; is that right?

A. Yes, sir.

Q. You were very careful to point out to us what you saw the person who ran across the street do. Now, even though you told the police one-half hour after this incident that you saw this man run across the street and pull a gun out, you were just assuming he pulled out the gun; isn't that a fact? You didn't actually see the gun, did you?

A. No, I didn't see the gun.

Q. So it was an assumption on your part: is that right?

A. I would imagine so.

Q. Fine. No one is penalizing you for it, sir.

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MR. MCGILL: Objection to the comments.

THE COURT: No comments.

MR. JACKSON: Sorry.

Q. So even though the statement was given one -- half hour after the incident, it's still an assumption even then; is that right?

A. Well, I heard the gunshot, so --

Q. Okay.

A. Okay.

Q. No question about hearing the gunshot.

A. Right.

Q. Now, back to, again, what really happened.

MR. MCGILL: Objection, comments.

MR. JACKSON: I'm talking about the shooting, that's what I mean.

Q. The shooting itself, you indicated that when the shooting happened the driver of the Volkswagen was on the police car?

A. After the shooting?

Q. Or at any time?

A. They were all right in front of the police car, yes.

Page 67.

SCANLAN - RECROSS

Q. The police car.

MR. JACKSON: May I have one moment, please?

-----

Q. Let me refer you to Page 107, and perhaps you can --

MR. JACKSON: I'm sorry, the notes of testimony, March 29, 1982, Mr. McGill, Page 107.

MR. MCGILL: Yes, thank you.

Q. "Question: Now when you said" -- strike that.

I'll start a little further.

"Question: When you first saw the man, other than the officer, this man you said later struck the officer, what was this man doing?

"Answer: When I reached the intersection" -- your answer was, "When I reached the intersection?

"Question: Yes, sir.

"Answer: He was talking to the police officer in front of the Volkswagen.

"Question: Now, when you said in front of the Volkswagen, you would have been seated in your car and you have an intersection at 13th and Locust,

Page 68.

SCANLAN - RECROSS

you have the police vehicle, and then you have the Volkswagen, and they were standing in front of the Volkswagen; is that right?

"That's correct."

Now, I just want to be certain. Did they ever move from in front of the Volkswagen and go to the police car?

A. No. I think it all took place in front of the police car. I just remember the Volkswagen specifically, because of the appearance of the car. I think that's why I said in front of the Volkswagen.

Q. This was a mistake?

A. Just the appearance of the Volkswagen, the front and the back. I believe this day, it was in front of the police car.

Q. When you said it was in front of the Volkswagen on two occasions, you were wrong?

A. I could have been mistaken.

Q. Okay. I just wanted to get that straight. Again, with regard to the hands of the police officer, you said that you weren't focusing on his hands, right?

A. Right.

Page 69.

SCANLAN - RECROSS

Q. You weren't focusing on the hands of the driver of the Volkswagen either?

A. No.

Q. And you weren't focusing on the hands of the shooter either, because you're saying that you saw his hands go up, and then you didn't focus on it. So you didn't see anybody's hands?

A. I saw the hand when it came up. I just don't remember seeing the gun.

Q. I know. But you never saw it stop. That's what you said earlier.

MR. MCGILL: Objection, your Honor.

Q. Correct me if I'm wrong. What do you mean you never saw it stop? You said that you saw the shooter, his hand was coming up.

A. Yes. By that point, he was already on top of the --

Q. And you heard a shot?

A. That's correct.

Q. So what I'm saying is, although you saw this one hand start to go up, you only heard a shot and you don't know where the hand was pointed, or where it stopped; isn't that what you said?

A. That's correct.

Page 70.

SCANLAN - RECROSS

Q. So it's fair to say at the time of the shooting you weren't looking at anybody's hands?

A. Just the one that came up.

MR. MCGILL: I have to object. What shooting?

MR. JACKSON: The first shot. I repeated it three times. That's what we're talking about.

A. I just saw the hand come up, and I never saw the gun until he was shot.

Q. And after that, sir, did you see anyone else's hands before you left the scene?

A. Just the one that was holding the gun in his right hand, and fired at the officer.

Q. You could see the officer's hands, couldn't you? I mean, you could see the entire body of the officer when he was on the ground?

A. I could see from his head to his toes, yes.

Q. And you saw him as he fell, did you not?

A. Yes, sir.

Q. Did you see his hands grab on to anything?

A. No, I don't remember.

Page 71.

SCANLAN - RECROSS

Q. And you didn't notice anything in his hands either, did you?

A. No, I didn't.

Q. The driver of the Volkswagen, you could see him this entire time as well, couldn't you?

A. I wasn't really focusing my attention on him, just the officer.

Q. I appreciate the fact that you weren't focusing on him, but you could see him?

A. Yes.

MR. MCGILL: Objection, your Honor. It's quite relevant if he wasn't focusing on his hands.

MR. JACKSON: The question is whether he could see him.

A. Well, I know he was still there. I wasn't looking at his hands.

Q. Fine. Thank you, sir, I understand that. Now, Mr. McGill indicates that you weren't interested in anybody else who was at the scene and I can appreciate your interest. Nevertheless, on December 12th, when you talked to a detective, whose name I really can't distinguish --

Page 72.

SCANLAN - RECROSS

MR. MCGILL: It really doesn't matter.

MR. JACKSON: Yes.

Q. In fact, you gave them a description, a diagram, placing individuals who were at the scene, did you not?

A. That's correct.

Q. Even though you didn't focus in on anyone, you put a person standing at the -- I guess that would be the southwest corner -- you put two people standing at the northwest corner, you put -- this is the second man that you saw standing at the parking lot. Was he standing at some point in time, just standing without running or without walking?

A. I don't know. I didn't see him. I just saw him from running out of the parking lot.

MR. JACKSON: Your Honor, may I approach the witness for a moment?

Q. So that I'm clear sir, this is an indication here that there is a second, N-M., I suppose, negro male, standing -- whose indication of that standing is that?

A. That's mine. That's the man that came running

Page 73.

SCANLAN - RECROSS

out of the parking lot.

Q. Was he standing there?

A. No.

Q. He was never standing?

A. No.

Q. Okay. But in any event, then you did have some idea of who was at the scene in that general area on December the 12th?

A. I know there was other people besides myself.

Q. And all that you meant was that you didn't focus on them. It wasn't that you didn't see them, just that you weren't focusing on them.

A. Right.

Q. That's what I thought you meant. Thank you.

MR. JACKSON: Nothing further.

BY MR. MCGILL:

Q. Mr. Scanlan, on your first statement, C-51, at the bottom of Page 1, where you said you observed the man running across the street, and shoot the officer in the back, and he fell down. When that man was over the officer, did you see the gun and flashes at that time?

Page 74.

SCANLAN

A. I saw the flashes, there.

Q. Fine. And it was coming from his hands?

A. Yes.

Q. Where he was pointing?

A. Yes, sir.

MR. MCGILL: Thank you very much.

MR. JACKSON: I have nothing further, your Honor.

(Witness excused.)

THE COURT: Let's take a short recess.

- - - -

(Recess)

-----

(Whereupon the jury entered the courtroom and the following took place:)

MR. MCGILL: May I proceed, your Honor?

THE COURT: Yes.

MR. MCGILL: Mr. Albert Magilton.

(Discussion off the record)

ALBERT MAGILTON, after having been duly sworn, was examined and testified as follows:

Page 75.

MR. MCGILL: May I proceed, your Honor.

THE COURT: Yes, please.

DIRECT EXAMINATION

BY MR. MCGILL:

Q. Mr. Magilton: I'm directing your attention to December the 9th, 1981.

A. Yes, sir.

Q. And particularly some short time before 4:OO a.m. on that morning, did you have occasion to be in the area of 13th and Locust Streets?

A. Yes, I was.

Q. All right, sir. What did you observe?

A. I observed the gentleman -- well, the police officer pulled over a blue Volkswagen at the corner of 13th and Locust.

Q. And what did you then observe?

A. Well, the officer was on the microphone, and then he pulled the car over. The driver got out and the officer got out, and they proceeded to the pavement. And then after that there, I proceeded to cross Locust Street, which I noticed the gentleman coming from the parking lot.

Page 76.

MAGILTON - DIRECT

Q. And what was this man doing, or this person doing, when he was coming from the parking lot?

A. He was sort of like moving across the -- across the street fast, and he had his hands back behind his back.

Q. Would you stand up, please.

MR. MCGILL: With the Court's permission.

Q. You don't have to come down here. Just indicate to the jury what you mean by his hands behind his back.

A. He had his hands back like that there.

Q. Indicating his --

A. His right arm.

Q. -- right arm.

A. Towards the back, such like that.

Q. Sort of cupped?

A. Yes.

Q. Behind, on his right side in the direction of his back, more on his back than on his side?

A. Yes, sir.

Q. And what did you observe this man doing?

A. He was moving across the street towards where the officer had stopped the Volkswagen. And --

Page 77.

MAGILTON - DIRECT

Q. And did you have occasion to lose sight of him?

A. Yes, sir. About half-way across the street, I had turned to proceed crossing the street.

Q. Then when you went across the street, what happened?

A. I heard some shots and I looked over and I didn't see the officer there no more.

Q. All right. And then what did you do?

A. Well, I proceeded back across the street to see what had happened to the officer. And then as I was moving across the street, you know, I was moving slowly across the street, I looked. When I got to the pavement, I had looked down and I had seen the officer laying there, and I didn't see the other gentleman until I -- until I moved up closer and he was like sitting on the curb.

Q. And where was he sitting on the curb?

A. By the front of the Volkswagen.

Q. And what did you see happen to him?

A. Well, he -- as soon as the police arrived, there was a scuffle as they was looking for the weapon.

MR. JACKSON: Objection. Move to strike, your Honor,

Page 78.

MAGILTON - DIRECT

Q. All right, Mr. Magilton --

THE COURT: Strike that last part.

Q. Okay. There was a struggle and what did they do to that man?

A. They handcuffed him and put him in the wagon.

Q. Now, did you have occasion to be asked to do anything?

A. Yes.

Q. In reference to the wagon.

A. Yes, The officer took me over to the wagon and asked me if this was the gentleman I seen coming across the street.

Q. What did you say?

A. I said, "Yes, that's the man."

Q. And where was the wagon?

A. It was parked by the -- towards the front of the police car.

Q. In what direction?

A. Heading towards -- facing towards 12th Street.

Q. Now, did you have occasion to -- or can you identify that particular man that ran across the street?

A. Yes, I can.

Page 79.

MAGILTON - DIRECT

Q. Did you have occasion to identify him at a pre-trial hearing a few weeks ago?

A. Yes, I did.

Q. And at that point, where was he seated?

A. He was sitting next to that gentleman there. While I was -- I believe he was sitting in that chair where that gentleman is sitting.

Q. And this gentleman was sitting where?

A. He was sitting next to him on his right.

MR. JACKSON: There's a stipulation.

MR. MC GILL: Your Honor, there's a stipulation. The same stipulation that if the defendant were here, Mr. Magilton would identify him as the man he saw running across the street.

THE COURT: Once again, ladies and gentlemen, you remember that I told you that you can only consider that evidence which comes from this witness stand. Of course, to that rule there is an exception, the exception being that when both counsel stipulate to a fact, you can take that fact as if it had come from this witness stand. Do you understand? Go ahead.

Page 80.

MAGILTON - DIRECT

Q. Now, when you went up there and you saw the defendant in front of the Volkswagen, did you see anyone else there? Any other civilian?

A. Yes, there was another gentleman there.

Q. Now, had you seen him before?

A. He was the driver of the Volkswagen.

Q. Other than the driver of the Volkswagen, as well as the man running across the street, did you see anyone else there at the time when you walked up?

A. Well, there was the police officers, and there were other people around. And when I looked there was a crowd of people and everything around.

Q. This is after the police came?

A. Yes.

Q. Now, Mr. Magilton, you said something about a microphone. What did you mean by that?

A. Well, the police radio.

Q. Oh.

A. You know, before the officer had gotten out of the car he was on the police radio.

Q. Had you seen that police officer in that car any other time earlier that day?

A. Well, I had seen him down the street, just before

Page 81.

MAGILTON - DIRECT

he pulled away around Juniper and Locust.

Q. And after he pulled away, what did you see him do?

A. Well, I proceeded up towards 13th Street, and that's when he pulled the Volkswagen over.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION

BY MR. JACKSON:

Q. Mr. Magilton, so that I'm clear, you were walking, first of all; is that right?

A. Yes, sir.

Q. When you saw the police car at Juniper and Locust, where were you?

A. Well, I was there looking at this here car.

Q. Where, sir?

A. Right on the corner of Juniper and Locust.

Q. You were at Juniper and Locust?

A. Yes, sir.

Q. And you -- and when you first saw the police car, was it moving or was it standing still?

A. It was moving.

Q. And traveling east on Locust Street?

A. Yes, sir.

Page 82.

MAGILTON - CROSS

Q. Did you see the Volkswagen?

A. Not until the police officer pulled it over.

Q. Now, when you saw the police car, and it was moving, you were standing at Juniper and Locust?

A. Yes.

Q. Facing what direction, sir?

A. Well, I was looking at this car.

Q. Whose car?

A. I don't know whose car it was. I was looking inside the car.

Q. Just looking at a car?

A. Yes. And the officer stopped me, you know, and asked me what I was doing. I told him. Then he asked me my name. He said I looked familiar.

Q. So the police officer -- Officer Faulkner, the one who was shot?

A. Yes.

Q. He stopped you at Juniper and Locust?

A. Yes.

Q. And asked you what you were doing. You said looking at the car?

A. Yes.

Page 83.

MAGILTON - CROSS

Q. Why were you looking at the car at 4 o'clock in the morning?

A. Well, it was a big limousine, and it had stuff in the back of it.

Q. Fine.

A. And I was just curious.

Q. Okay. So after you satisfied the officer with what you were doing, he took off east on Locust Street, and then you started walking east up Locust Street?

A. Yes, sir.

Q. And at what point did you first see the Volkswagen?

A. When the officer put his lights on to signal him to pull over.

Q. So, did you ever see the Volkswagen -- I guess it would be west of 13th Street?

A. Not -- not that I can say.

Q. So when you first saw the lights of the police vehicle he was already across 13th Street?

A. No, they were sitting at the light, and when he put his lights on, the light changed and the car pulled over.

Page 84.

MAGILTON - CROSS

Q. So they were right there at 13th and Locust waiting for the light?

A. Yes.

Q. And the police car lights -- then the driver of the Volkswagen pulled over and he got --

A. Yes, sir.

Q. Now, you proceeded east on Locust Street, right?

A. Yes, sir.

Q. On the south side of Locust Street?

A. Yes, sir.

Q. And you went to the corner of 13th and Locust. Did you cross 13th Street?

A. Well, I stood there and watched for a while as the officer pulled the car over.

Q. Okay. Now, at that point, when the officer pulled him over, you were at the corner. Did you see if there were any other cars on the street then?

A. There was a couple cars in front of the Volkswagen.

Q. There were a couple of cars in front of the Volkswagen?

A. Well, there was a Ford I noticed in front of the Volkswagen.

Q. Right. How about moving, people driving cars on Locust?

Page 85.

MAGILTON - CROSS

A. Yes, there was traffic moving around.

Q. On both streets?

A. Yes, sir.

Q. 13th and Locust, did you see people standing?

A. There was a few people walking by.

Q. But did you see anyone standing?

A. There were some people over by the church or whatever it is on 13th Street, on -- on Locust Street there is a church or whatever it is there.

MR. JACKSON: If he could place it on the diagram, just so that we'll know where the place is that he's talking about. That one, please.

Q. Mr. Magilton, if you possibly can, maybe you can come down, please. So that you know, this is Locust Street, this is 13th Street.

A. Over here there is a building.

Q. You have to speak up and stand back.

A. Right here on the corner there is an old church, or old movie house, or something.

Q. Let me interrupt you just a moment. That would be the southwest --

A. Southwest corner.

Page 86.

MAGILTON - CROSS

Q. Go on.

A. Well, there was someone standing over by the steps there.

Q. Right. What about the southeast corner?

A. Well, there was people moving around there.

Q. Did you see anyone standing at the southeast corner?

A. No. I noticed a gentleman come from through here, and he started moving across the street, and that was Mr. Jamal.

Q. All right. But you never say anyone right here on the southeast corner?

A. Not to my knowledge.

Q. How about a taxicab?

A. There was cabs moving all around.

Q. But did you see one parked?

A. There was one up here parked.

Q. And did you see any other cab that was parked?

A. No.

Q. Okay. Before returning to your seat, could you diagram or show us your path after you got to 13th and Locust, because you indicated you walked a distance and then came back?

Page 87.

MAGILTON - CROSS

A. Yes, I started walking across here, and I was about there, when I heard the shots. Well, I was here when I noticed Jamal coming out of the parking lot.

Q. You were where when you noticed him?

A. Right about here.

Q. Okay.

A. And then I noticed a gentleman coming through the parking lot, walking across here, and I lost him about half-way. Then I got right about the corner, that's when I heard the shots and I looked back.

Q. Were you on the sidewalk? Did you reach the sidewalk?

A. I was in the street.

Q. Okay.

A. I was just about to walk up on the sidewalk.

Q. Fine. Please return to your seat, sir. Now, you were just about to mount the sidewalk when you heard noise, shots?

A. Yes.

Q. Did you hear one shot, two shots, in rapid succession? As best as you can recall, what did you hear, sir?

Page 88.

MAGILTON - CROSS

A. Pow, POW, POW, and then Pow, Pow.

Q. POW, POW, POW, and then Pow, Pow?

A. Yes.

Q. Okay. So it's fair to say that you did not hear one shot and a pause, and then a few more shots?

A. Yes, I guess so.

Q. Pardon me?

A. I guess so.

Q. It's fair to say that?

A. Yes.

Q. Okay. In fact after hearing the shots, you immediately turned around; is that right?

A. Yes, sir.

Q. And you didn't see the police officer?

A. No, sir.

Q. And in fact, you didn't see the man who you said was walking across the street?

A. No, I didn't.

Q. In fact, you didn't see this man go to the police officer, did you?

A. No, sir, like I said, I lost him about half-way across the street.

Q. And you don't know who fired the shot at him, do you?

Page 89.

MAGILTON - CROSS

A. I never said I did, no.

Q. I understand that. I understand that. You never saw a gun, either?

A. No, sir.

Q. When you were crossing Locust Street -- let me back up a little bit. When you saw the officer stop the driver of the Volkswagen, did you see him get out of the car?

A. Yes, I did.

Q. What did they do when they got out of the car?

A. Well, they proceeded to walk in between the cars, and they were going up on the curb.

Q. They walked between the Volkswagen and the police car?

A. Yes, sir.

Q. And they got up on the curb?

A. Yes, sir.

Q. And what happened? I mean, tell us what happened, what you saw.

A. Well, after that there I turned around, I was waiting for the light to change to come across.

Q. Okay.

Page 90.

MAGILTON - CROSS

Did you see anything happen in the street?

A. No, I didn't.

Q. Did you see the driver of the Volkswagen strike the police officer?

A. No, I didn't.

Q. Did you see the police officer strike the driver?

A. No, sir.

Q. Did you see anything in the police officer's hand?

A. Not that I know of, no, sir.

Q. Did you see anything in the driver's hand?

A. No.

Q. You say no, you didn't see it, or no, there was nothing?

A. No, I didn't see it.

Q. Fine. As best as you can estimate for us, how much time did it take for those shots to go off?

A. A few seconds, I guess.

Q. And you where walking when you heard the shots?

A. Right. Yes, sir.

Q. And you were walking casually, I suppose.

A. Yes.

Q. So you took no more than one or two steps?

Page 91.

MAGILTON - CROSS

Q. When you turned and looked, you heard the shots from the direction of the police officer and the Volkswagen: is that right?

A. Yes, sir.

Q. When you looked over there, as soon as you looked, what did you see?

A. Well, there was a gentleman standing there, but it wasn't -- I believe it was the driver of the car.

Q. You believe?

A. Yes.

Q. But you're not certain?

A. Well, I'm pretty sure it was the driver of the car. He had the same -- same hat on, like the driver of the car had.

Q. Now, the driver of the Volkswagen had a hat on?

A. Well, whatever you call them. It was like a--

Q. Hat?

A. Beret or something.

Q. What color was it?

A. Black.

Page 92.

MAGILTON - CROSS

Q. You're certain of that?

A. Yes, I am.

Q. The man who ran across from the parking lot -- you didn't see him run -- let me correct that. The man you saw walking from the parking lot, did he have a hat on?

A. No, he didn't.

Q. You're certain of that?

A. Yes sir.

Q. Did he have a cap on of any sort?

A. No, sir.

Q. Did you see his hair?

A. Yes, sir.

Q. And it was long dread locks?

A. Yes, sir.

Q. Nothing covering his hair at all?

A. Not that I know of, sir.

Q. The man who you say was the driver of the Volkswagen who had a cap or tam -- I don't know what they call it, either -- I think it's a tam, but in any event, did you see his hair?

A. No, sir.

Q. The hat completely covered his head?

Page 93.

MAGILTON - CROSS

A. Yes, sir.

Q. Would you be able to identify that man, the driver of the Volkswagen?

A. Yes, sir.

Q. You're certain of that?

A. I believe I could.

Q. Have you been asked to identify him by the police or the District Attorney's Office?

A. Well, I identified him when they brought him into the police station that night.

Q. And you told them --

A. That was the driver of the car.

Q. Do you recall how he was dressed?

A. He had a black coat, black hat, about five-seven, normal weight.

Q. A black coat?

A. Yes, sir.

Q. How long was the coat, or how short was it? Well, describe the coat.

A. My guess it was about down to his legs, I guess.

Q. It did not go below his knees, say like mid-calf or something like that, right here?

A. Yes.

Page 94.

MAGILTON - CROSS

Q. You see his hair?

A. No, sir, I didn't.

Q. So you don't know what style hair he had?

A. No, sir. He had a goatee.

Q. That was the only person that you saw standing when you first looked?

A. Yes, sir.

MR. MC GILL: Objection. I have to -- is this after all the shots?

Q. Yes, when he first looked, he looked after he heard all the shots; is that right?

A. Yes.

Q. You did not look after you heard the first shot or the second. It's like whatever number of shots there were, you looked after all of then sounded?

A. Well, I looked when I had first heard the first, burst.

Q. First burst?

A. Yes.

Q. And the first burst was one shot, or several shots?

A. Several shots.

Page 95.

MAGILTON - CROSS

Q. And --

A. And then the other ones went off and like I said, I didn't see the officer there.

Q. Okay. Then, you can correct me then, because I think I'm confused a little bit. You heard the first burst, and you turned. After turning you still heard some more shots?

A. Yes.

Q. And you looked over in that direction where the police officer was?

A. Yes.

Q. You didn't see the police officer. You didn't see the man who was coming from the parking lot, did you?

A. No, sir.

Q. The only person that you saw was the driver of that Volkswagen?

A. Yes, sir.

Q. What was in his hands?

A. Nothing that I could see.

Q. Did you see his hands?

A. No, sir.

Page 96.

MAGILTON - CROSS

Q. Was his back to you?

A. I saw his like side profile.

Q. So you would have seen his left profile?

A. His right profile.

Q. You saw his right profile. So, then he would have been facing south; is that right?

A. Yes, sir, I guess.

Q. See anyone else? After you heard the shots, see anyone else?

A. No, sir.

Q. Did you see anyone moving from the scene?

A. No, sir, I didn't.

Q. Did you see anyone moving toward the scene?

A. Yes, sir, there was a bunch of people moving towards the scene.

Q. Do you know -- can you describe "bunch of people"? I mean who it was, how many?

A. No, it was just, you know, just people that were moving around; I guess they were curious.

Q. Fine. Were police also part of the people moving towards the scene, then?

A. Yes, sir.

Q. So the police actually got there before you got there, didn't they?

Page 97.

MAGILTON - CROSS

A. Well, I was moving across slowly, because I didn't, you know, know what was going on. I didn't want to get shot.

Q. I don't blame you. I don't blame you. So you cautiously moved up?

A. Yes, sir.

Q. And about the same time that these other people started moving towards the scene, the police arrived?

A. Yes, sir.

Q. So that would it be fair to say that you didn't stop, you just walked slowly towards --

A. Yes, sir, and as I approached the corner, that's when I moved around and I seen the officer laying on the pavement.

Q. Okay. When you saw the officer laying on the pavement were police already there?

A. They were just moving up into -- they were pulling up when I seen the officer.

Q. And you saw the police come up Locust Street, right?

A. Yes, sir. They were coming from all directions up Locust, down Locust, up 13th, down --

Q. So you felt --

A. All the way.

Page 98.

MAGILTON - CROSS

Q. So you felt secure enough to move forward?

A. Yes, sir.

Q. Okay. By the way, the driver of the Volkswagen, was -- you know, when you heard the shots, you saw him -- you saw the right profile, he was in the street, in between the cars, on the side, where was he?

A. He was on the sidewalk.

Q. He was on the sidewalk. In relationship to the curb and the wall, was he closer to the curb or closer to the wall?

A. He was closer to the wall.

Q. Could you see his full body?

A. When I got up to the pavement, I did.

Q. No. I mean when you first saw him, when you first turned around and saw him?

A. No, sir.

Q. Now, after you turned around and you saw him, you never lost sight of him, did you?

A. No.

Q. What was he doing?

A. He was just standing there. He had a shocked expression on his face.

Q. Did you see if he was injured?

A. No, I didn't.

Page 99.

MAGILTON - CROSS

Q. Did you see anyone strike him?

A. No.

Q. Did you see him strike anyone?

A. No, I didn't.

Q. Now, I understand that you lost sight of -- strike that. As you approached, you didn't see the officer at first; is that right?

A. Yes.

Q. At what point was it that you saw the officer?

A. When I got up to the pavement.

Q. That would have been on the same pavement where the officer was?

A. Yes, sir, southwest corner.

Q. Fine. At what point did you see Mr. Jamal?

A. Well, as the police were arriving and they got to the scene that's when I moved up against the wall, and I seen him sitting -- he was like in front of the Volkswagen on the curb.

Q. In front of the Volkswagen. That would have been --

A. Well, towards the front fender of the Volkswagen.

Q. And that -- okay. And there was a Ford parked in front of the Volkswagen; is that right?

Page 100.

MAGILTON - CROSS

A. Yes.

Q. Did you see anything in Mr. Jamal's hand?

A. No, I didn't.

Q. Indeed, you never saw anything in Mr. Jamal's hand; is that correct?

A. Yes, sir.

Q. Never saw anything in the police officer's hand?

A. No, I didn't.

Q. And you never saw anything in the hand of the driver of the Volkswagen?

A. No, sir.

Q. And in fact you never saw the man actually cross the street when he came from the parking lot. You just saw him enter the street; is that right?

A. Oh, I had seen him half-way across the street.

Q. But you didn't see him --

A. But like in the middle of the street when I lost sight of him.

Q. Now, you were about 15 to 80 feet away when you saw the man crossing; is that right?

A. Yes, sir.

Q. So that I enjoy the same wavelength, can you estimate from where you are someplace in this courtroom

Page 101.

MAGILTON - CROSS

where that would have been 75 to 80 feet away. Maybe a wall, a person in the courtroom, or something like that. So we have something.

A. I guess from here to that door back there.

Q. That door back there?

A. Yes, sir, maybe a little farther -- I don't know.

Q. The driver of the Volkswagen, did you see handcuffs on him?

A. After the police arrived he was handcuffed.

Q. You saw them handcuff him?

A. Well, I didn't actually see them handcuff him, but after I looked up he was handcuffed.

Q. After you looked up from where?

A. Well, after I had seen the officer, you know, I sort of shocked myself. I was sort of shocked myself.

Q. Do you know whether he was handcuffed before the other officers arrived?

A. I couldn't actually say. I don't know.

Q. Do you know if Mr. Jamal was handcuffed before the police officers arrived?

A. No, he wasn't.

Page 102.

MAGILTON - CROSS

MR. JACKSON: Your Honor, would you indulge me one moment.

(Discussion off the record)

Q. Excuse me one moment, Mr. Magilton.

A. Yes, sir.

Q. By the way, how many shots did you hear all together?

A. Five.

Q. And you're certain there were five shots; is that right?

A. Yes, sir.

Q. Couldn't have been four? Couldn't have been six? It was five?

A. It was five. I'm not exactly sure in what succession they were but I know it was five, because I was cautious about going back on the pavement.

Q. It may have been more?

A. Yes, sir.

Q. Mr. Magilton, do you frequent that area?

A. No, not necessarily, no. I might pass through there sometimes, but I'm not a regular customer, I guess, down there.

Page 103.

MAGILTON - CROSS

Q. I didn't mean to intimate anything. Let me do it this way: How often would you go -- I don't mean necessarily to do anything -- how often are you in that area?

A. Say a couple times -- I go to a go-go bar down there.

Q. So you say a couple times a week, maybe?

A. Well, I wouldn't say a week. Not very often.

Q. Do you know some of the ladies of the night down there?

MR. MC GILL: Objection, your Honor.

THE COURT: I will sustain the objection.

Q. Do you know Cynthia White?

MR. MC GILL: Objection, your Honor.

A. No, I don't.

Q. By the way, when the officer stopped you, he said that he thought that he knew you.

A. He said I looked familiar.

Q. Did he know you or anything like that?

A. No, he didn't.

MR. JACKSON: Thank you, Mr. Magilton. I have no further questions at this time.

Page 104.

MAGILTON

REDIRECT EXAMINATION

BY MR. MC GILL:

Q. Mr. Magilton --

A. Yes, sir.

Q. -- after you heard the shots, when you heard the last shot, where were you at that time?

A. Like I say, I was just about -- about three-quarters of the way across the street.

Q. You did not then make the sidewalk before the last shot was --

A. No.

Q. You said you turned around and at that point in time, you were -- were you able to see the officer, then?

A. After the last shot, no, I wasn't.

Q. Were you able to see the man you've identified as the defendant in this case that you identified previously, the one who ran across the street? Were you able to see him there?

A. No, no, I didn't see him.

Q. You were able to see the other person; is that correct?

A. Yes, sir.

Page 105.

MAGILTON - RECROSS

Q. When you went over to the south side of Locust Street, is that the first time you saw the officer?

A. Yes, sir.

Q. And where was he then?

A. He was laying on the pavement.

Q. And were you then able to see the defendant, or did you have to go up closer?

A. Well, I moved up to the wall, that is when I noticed the defendant up in front of the car.

Q. Okay. Is it accurate to say that from where you were, that is three-quarters of the way across Locust Street going north, when the last shot was fired, when you turned around, that you were unable to see the defendant if he were seated in that spot where you eventually saw him? Would that be fair to say?

A. Yes, sir.

Q. Just as you were unable to see the police officer?

A. Yes, sir.

Q. And when you did see the other person who you referred to as the driver he was closer to the wall? Is that what you said?

A. Yes, sir.

Page 106.

MAGILTON - REDIRECT

MR. MC GILL: The photograph of -- I forget the numbers. Let me see the photographs.

Q. Can you identify this photograph, C-21?

A. That's the driver of the car.

MR. MC GILL: Thank you. Nothing further.

MR. JACKSON: Just a couple more, if you don't mind, sir.

MR. MC GILL: I do have one other question, if I may? Just one.

MR. JACKSON: You have my permission, sir. Thank you.

MR. MC GILL: Is it all right with the Court?

THE COURT: Yes.

BY MR. MC GILL:

Q. You indicated --- or did you indicate he was walking across the street, this defendant, or how was he moving from the parking lot to the -- when you first saw him, the first portion of his route?

A. He was moving pretty fast, but I wouldn't say he was running, no. It was like, you know, a fast walk.

Page 107.

MAGILTON - REDIRECT

Q. Okay.

A. He was moving fast, but I wouldn't say he was running.

Q. Thank you. He has some more questions.

MR. JACKSON: I ask you hand the witness C-15, please.

RECROSS-EXAMINATION

BY MR. JACKSON:

Q. See if you can identify that.

THE COURT: C-15?

MR. JACKSON: That's the tam.

MR. MC GILL: That's the hat.

Q. Mr. Magilton, have you ever seen that before, sir?

A. Looks like the type hat the driver was wearing.

Q. Looks like the type of hat?

A. Yes, sir.

Q. You indicated that you were certain it was a black cap. That, of course, is not.

A. Well, it looked black.

Q. Okay.

A. Well, it was a dark color.

Q. Fine.

A. Sorry.

Page 108.

MAGILTON - RECROSS

Q. So are you saying -- well, what are you saying?

A. Well, I said it was a black cap.

Q. Right.

A. Yes, sir.

Q. And that one is what?

A. Dark green.

Q. Okay. Are you saying --

A. Well, at nighttime, it would look black.

Q. So, you're saying possibly it's the same hat?

A. Yes.

Q. When you went up to the police officer, you saw, the police officer. Did you look at his holster?

A. No, I didn't. I was -- well, when I first seen him, I had seen his face laying there, and his face was all bloody. Like I said, I was shocked after seeing that.

Q. Did you see any guns on the pavement?

A. I wasn't looking for any.

Q. I understand that.

A. No, sir.

Q. You didn't see anything?

A. Well, I couldn't say, I couldn't look around.

Page 109.

MAGILTON - RECROSS

As I said, I seen the officer's face, and I was kind of shook up.

Q. Okay. When the police arrived, and I know you said there was a bunch of them --

A. Yes.

Q. -- did you see any of them kick any weapons?

A. Not that I know of.

Q. Did you see any of them pick up any weapons?

A. No, sir.

Q. You remained there the entire time, didn't you?

A. Well, not the entire time. Until after they started gathering witnesses. Then after they put Mr. Jamal in the wagon, we were escorted down to the Round House.

Q. Fine. But until at least the time that Mr. Jamal was placed in the wagon, you remained right where you were, wherever that was?

A. Yes, sir.

Q. And exactly where was that? You took a stationary position at some point, didn't you?

A. Yes, sir.

Page 110.

MAGILTON - RECROSS

A. Yes, sir. I was about say towards the front door of the patrol car.

Q. Toward the front door of the patrol car?

A. Well, the front fender. But I was up against the wall after the police arrived.

Q. So then, would it be fair to say you were about a car length away from the officer, about a car length or so away from Mr. Jamal, as well?

A. Yes, sir.

Q. And you didn't see the officers kick any weapons, you didn't see them pick up any weapons?

A. No, sir.

Q. You didn't see them pick up any?

A. Well, as I said, you know, all I could see was the officer, and that's all I was looking at.

Q. You did look at the other officers when they came on the scene, didn't you?

A. Yes, sir.

Q. And -- I mean, you knew that they were moving around, doing different things?

A. Yes, sir. But my main attention was focused on the officer, because I had never seen nothing like that before.

Page 111.

MAGILTON - RECROSS

Q. I understand that. The question is, while these other officers were moving around, did you ever see any officer with two guns in one hand?

A. The only time I see that, was when we were in the police station.

Q. But other than that, you never saw that at the scene?

A. No, sir.

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

BY MR. MC GILL:

Q. Mr. Magilton, you saw a police officer with two guns at the police station?

A. Yes, sir.

Q. When you -- strike that. Where were you when the police officers first arrived?

A. As I said, I was up against the wall moving towards the scene.

Q. When you say against the wall, where do you mean?

A. Southwest corner of 13th and Locust.

Q. Southwest or southeast? East would be closer to 12th.

Page 112.

MAGILTON

A. Southeast, heading towards 12th.

Q. Did you immediately go to the scene, or did you wait for a while, until the police --

A. I waited until I was safe.

Q. Right. Would it be fair to say that you're not really aware of what the police officers did once they arrived, at least?

A. As I said, once I seen the police officer's face, I was sort of in shock myself.

Q. I understand that. Believe me, Mr. Magilton, what I'm suggesting is that when you were moving gradually towards the east area, towards 12th Street, would it be fair to say that you were not paying attention to all of what the police officers themselves were doing at the scene?

A. Yes, sir.

Q. Thank you.

THE COURT: This is a good time to break for lunch.

(Witness excused.)

THE COURT: We'll recess for lunch until 2:30.

Page 113.

(Whereupon the jury left the courtroom and the following took place:)

MR. MC GILL: Judge, I'm still a little bit bothered about this identification business. I think what I'm going to have to do is -- and I recognize that Mr. Jackson has suggested a stipulation, rather than the potential prejudice that may arise if the defendant acts up in front of the jury, just for the purposes of an identification by a witness. But I'm still concerned about the --the vital element of an identification as part of the case for purposes of appeal.

Now, he has stated that he observed this man sitting in the chair during the pre-trial hearing, and that was Mr. Jamal, and that was the defendant. And it was stipulated to, and Mr. Jackson has stated that the man sitting there was in fact the defendant in this case.

I'm still not sure whether that's enough, but I wanted to make sure that I at least represented to Mr. Jackson, or represented on the record, what Mr. Jackson said, why he

Page 114.

wanted a stipulation rather than the man coming out.

MR. JACKSON: Sure, that --

MR. MC GILL: What I will do is get a picture of -- a photograph of Mr. Jamal, from the newspaper, and I will bring it in. And would you stipulate that that particular picture in the newspaper is the picture that he identified? I don't have a photograph. That's the problem, Judge, unless I can get a photograph -- a photograph that I want to present. I don't want to put the one with him in the hospital.

THE COURT: Why don't you wait until you get the photograph, and let him look at it, and make a decision.

-----

(Luncheon Recess)

-----

Page 115.

AFTERNOON SESSION

(A conference was held in chambers and recorded as follows:)

THE COURT: What is the problem? Let's get right to the crux.

MR. MC GILL: We mentioned before, you Honor, this is not admissible for two reasons. We're talking about a document which is -- amounts to an investigative log that is signed.

MR. JACKSON: I don't think you've identified it for the record. What are you talking about?

MR. MC GILL: This is a document which purports to be an investigation log, 55-X-835 Form. Now, this investigation log is a piece of paper with the date, 12-9-81, 9:00 A.M. It is signed with the initials of someone who is an investigator for the Medical Examiner's Office. The top of the document says, "Per Sergeant Westerman, Homicide Division," and then goes into a text, and it is initialed by the investigator.

Page 116.

A portion of the text deals with the alleged circumstances surrounding the injury of the defendant and is about the center portion of the context of the text.

It is the Commonwealth's position, as I mentioned earlier this morning, it is inadmissible, number one, as a business record, business record exceptions. It's also inadmissible on the basis of relevancy on the cross-examination of this witness because he at no time used any information in relation to the injury of the defendant to determine the cause of death of the deceased.

But putting relevancy aside, it is not admissible on the basis of the hearsay exception for business records, because the text of the remarks allegedly by Sergeant Westerman itself, if even accurate, is hearsay from Sergeant Westerman. Sergeant Westerman heard it from other people; it's not accurate to begin with, but even if it were accurate, it would have been heard from other peoples, either one or more, since he is a desk man, and not involved in the direct investigation

Page 117.

of the incident.

Secondly, the man who wrote it down himself, who was the investigator, is only reporting what Sergeant Westerman said to him, what he, Sergeant Westerman, had said to him.

So, one of the primary concerns with business records exceptions is the fact that the text of the business record, beside it being in the ordinary course of business and besides it being done at or about the time that it was noted down, and information received, but aside from that, it is clearly hearsay, because the text must be a primary source.

In this particular case, it is not only failing the element of being a primary source, it is about double or triple hearsay, and on that basis alone, besides relevance, it would be inadmissible on this record.

Okay. Shoot.

MR. JACKSON: Your Honor, I have perhaps a two-fold response to the argument and the first divided in this matter.

Page 118.

I would, number one, move for a mistrial at this point, based on my prior request through the Omnibus Motion for discovery information, and I would think that in this case the merit or the truth or the lack of truth with regard to the statement I was not provided this information by the District Attorney or the Police Department with respect to possible and potential exculpatory evidence.

Assuming for the moment that even if your Honor were to assume and determine that knowledge was hearsay information, of course one of the ways we could cure the hearsay information is to pursue it to its source. I have not been given that opportunity through the District Attorney's Office to do so.

And for that reason, I move for a mistrial.

Secondly, your Honor, with regard to business records exceptions, and Mr. McGill talked upon the hearsay -- upon hearsay, and I cite, your Honor, Commonwealth versus Kelly,

Page 119.

245 PA., Superior Court 351, it's a 1976 case. One of the holdings of the Court is that a person called for the purpose of qualifying business records needs not have any personal knowledge of the facts which are reported in the particular records. Your Honor, I'm sure is well versed in the business records that a person or an organization or corporation or agency may have, and Mr. McGill spoke to some of them; that is, that the information was recorded at or about the time of its occurrence; that there is a requirement that it be done--that it is done in the regular course of business.

I'm assuming that the Medical Examiner is in effect, aside from being the Medical Examiner, the Custodian of records. As such, these records are contained within the Medical Examiner's Office and I don't think that Mr. McGill is suggesting that he's not the Custodian of Records.

MR. MC GILL: Let me see that.

MR. JACKSON: But assuming that he is not, we still have the same issue, I'm sure.

Page 120.

THE COURT: Don't worry about that. Let's get to the crux of the thing.

MR. JACKSON: That the Custodian of Records need not have any personal knowledge of the information that is in the business record, and I think to deny that -- and I think with regard to the business record exceptions, I think that we've satisfied that. It's something that's done in the regular course of business, it was recorded at or about the time of the occurrence.

THE COURT: Yes, but just because it's business records, doesn't make it admissible. Even assuming that --

MR. MC GILL: Can I answer that?

Two areas: In reference to not receiving them, I would respectfully disagree, with Mr. Jackson. I have before me a copy of a log which I shall make a part of the record, which states that on January 27, 1982, approximately 11:40 A.M., a copy of the complete case was sent to Anthony E. Jackson, Esquire, Suite 911, Western Savings

Page 121.

Bank Building, Broad and Chestnut, Philadelphia, Pa., 19107.

This is signed by Aquillard, January 27, 1982; in response to or following this up, and speaking to this woman, a complete case means just that. The complete case. This complete case, including all of this material, the investigative log, as well as this very entry itself, was sent to me on April the 5th, 1982, when I had found out within about a couple days before, or maybe a week before or so, that the document which stated that -- or inaccurately stated the circumstances of the defendant's injury was circulated to the newspapers. I didn't even know it existed. Circulated to the newspapers, and they called me about it, and I immediately called him about it, alerting him that the newspapers called me about it. And telling him if it did exist, which I didn't know at the time, that document would be hearsay upon hearsay, and it's typical things that were said in the course of things, and incorrectly written down by someone.

Page 122.

That's where that was left. But there is a statement here, that was sent to him.

That's the first portion.

In terms of this case, Commonwealth versus Kelly, this deals with the fact that the Custodian himself, Custodian himself need not have personal knowledge of the contents of the records. I agree with that. That however, does not go to the issue here. We are not questioning whether the Custodian in this matter, or this doctor, knows, has personal knowledge of this particular incident, but whether or not the contents of the document itself, but whether they themselves are the personal, primary knowledge of the individual reporting. Not the Custodian, but the individual reporting it. It is not personal knowledge of either the investigator nor the Homicide Sergeant. So no one has personal knowledge of that. It's strictly hearsay, and that's the reason why it's unreliable. That's the basic reason.

MR. JACKSON: Judge, I'm not going to delay the issue. Again, my feeling is

Page 123.

with regard to counsel's argument, that there be some primary purpose to what the Medical Examiner's Office is doing. I would think again whether for counsel to say it's not within the personal knowledge of the investigator, it's not within the personal knowledge of the Sergeant, or anyone else, because he assumes that, it's not true. I think that's just a representation of counsel and --

THE COURT: I think the Court can take judicial notice of the fact that the investigator who was working at the Medical Examiner's Office, certainly it was not within his personal knowledge, because he says he's taking down what someone allegedly tells him over the phone.

MR. MC GILL: It's not the personal knowledge of Sergeant Westerman, and I will bring him in tomorrow and put that on the record. To move things on, he, of course, will say he didn't say that -- of course, it's not his personal knowledge, he's a desk man.

Page 124.

MR. JACKSON: Your Honor, again, perhaps in getting back to the earlier motion, if Sergeant Westerman -- let's assume it's not within his personal knowledge, and somebody told him, and somebody told that person, the problem I have, of course, is how am I able to track the people down, if I can't get to them?

THE COURT: Well --

MR. JACKSON: If your Honor pleases --

THE COURT: I'm not going to argue this point. Let's wait until tomorrow, until the Sergeant comes in, and let him tell his story in-camera. He's not going to tell it in front of the jury. We'll have an in-camera for you. But as far as I'm concerned, it's not admissible. Whatever other purpose you think you can use it for --

MR. MC GILL: It's irrelevant and inadmissible. And I was going to give Commonwealth versus Greiver, 461 Pa. 131, and the Kelly case is 245 Pa., Superior Court 351.

Put this down, Commonwealth versus McNaughton, 252, Pa., Superior 302, it's a '77 case. You can put down Commonwealth versus

Page 125.

Well, that's prior inconsistent statement in refreshing recollection: it's also not appropriate for that.

Commonwealth versus Proctor, 253, Pa. Superior Court 369, and I also make a part of the record -- I think it's C-37, the investigative log indicating the copy of the complete case was sent January 27, 1982. And I ask that this be marked.

MR. JACKSON: Judge, I just want to point out the very thing that Mr. McGill says is unreliable is the very same document that's he's relying on to tell this Court --

THE COURT: I'm not worried about that.

MR. MC GILL: I would like to explain the difference there.

MR. JACKSON: Let me explain something.

THE COURT: The jury is waiting. The motion is denied. you have all the time this afternoon, after we're finished. I don't

Page 126.

want to hold up the jury any more. It's quarter of 3:O0. Let's finish this case I and let them go.

MR. MC GILL: But your Honor has ruled that he can't use it.

THE COURT: Yes, I have ruled on that.

(End of conference in chambers.)

(Whereupon the jury entered the courtroom and the following took place:)

MR. MC GILL: I would like to re-call Mr. Magilton, as to one question. It's due to the --

MR. JACKSON: I object.

THE COURT: Can I see you over here at side bar, please.

(Side-bar conference, on the record)

MR. MC GILL: Judge, only for this purpose. Your Honor, because identification is such an important issue primarily brought up by the defendant in this case. In other words, to be absolutely positive for record purposes, I believe the -- I believe a photograph of some sort should be shown to Mr. Magilton

Page 127.

and that he would identify that photograph as the man that he identified as the man running across. That's the only thing I'm going to do. I will have it marked, shown to him, marked C-59 and shown to him and say, "The person that you testified about this morning that ran from the parking lot, the person that you identified at the other hearing, I'm showing you a photograph. Can you identify that?"

And he will say, "Yes, that's the same person."

"Fine." Then I'll have to put in Detective Thomas later and say that he's the exact same person that's been in the room. Only the identification is the stipulation. The problem is sometimes with stipulations, if you deal with that legally, if you don't have the colloquy with the defendant on a stipulation, you have a problem. So this is the round about way we have to do it, because of his absence.

MR. JACKSON: Your Honor, once stipulations are made by and between counsel,

PLEASE NOTE: Pages 128 and 129 are missing. We will try to locate these pages.

Page 130.

THE COURT: You should have had the photograph yesterday.

MR. JACKSON: He has photographs of himself. I don't know if you can take them from --

MR. MC GILL: Photographs of himself?

MR. JACKSON: Yes.

MR. MC GILL: No.

THE COURT: He wouldn't give you the records. What's wrong with that?

MR. MC GILL: Nothing.

MR. JACKSON: It's a newspaper.

MR. MC GILL: It's the way he looks, most like this today. Now, for the record, I'm going to have this marked C-59.

THE COURT: You have to do that.

MR. MC GILL: I wanted to let the record indicate I'm taking a photograph from the newspaper, which is very close, I think you will agree, as to how he appears today.

MR. JACKSON: Why would that have to be done in front of the jury? It seems to me the only concern is technical concern.

Page 131.

We've already stipulated in front of the jury. It would seem to me that for Mr. McGill to -- to get around that, we could do that outside of the jury. To pile it on again, I think, is --

MR. MC GILL: The reason it has to be done before the jury, is because it's their decision as to identification. It's not a legal question, it's a factual --

MR. JACKSON: I will stipulate.

MR. MC GILL: It has to be stipulated by the defendant on such an essential element of the case.

THE COURT: I see no harm in just looking at the picture.

MR. MC GILL: In fact, I'11 bring it up myself, and show it to him. I'd rather not do it, but I have to because of Mr. Jamal's absence.

MR. JACKSON: The only problem I see is who do you have to authenticate the photograph. I'm not being facetious. If the photograph looks like Jamal, and we all say --

Page 132.

THE COURT: He can identify it himself.

MR. JACKSON: He can say that's the picture.

THE COURT: "That's the picture of the man that I saw."

MR. JACKSON: You then have to get into -- the jury then needs to see the photograph. That's what I want to avoid doing.

MR. MC GILL: They will not see the photograph.

MR. JACKSON: That's the point.

MR. MC GILL: They will not see the photograph. The way I'll do it is with any photograph. I will say, "Can you identify this photograph?"

Answer: "Yes, that is the man I saw."

"Fine."

The last person in this case that I present will be Detective Thomas, or someone else who has seen and been looking at this defendant for the last six or seven months.

"Can you identify what C-59 is?"

Page 133.

"That is a picture of the defendant in this case."

MR. JACKSON: Judge, I'm saying that we can't do that, as you do with any other photograph, without authenticating the photograph.

THE COURT: Why?

MR. JACKSON: Who's going to say that is Mumia Abu-Jamal.

THE COURT: These people are. The jury has the right to decide whether or not what he's saying is true.

MR. JACKSON: That's what I'm saying.

THE COURT: You can't show that.

MR. JACKSON: From a newspaper photograph.

THE COURT: You can't tell that it's from a newspaper.

MR. JACKSON: Judge, come on.

MR. MC GILL: You don't have to.

THE COURT: Suppose they ask for it?

MR. JACKSON: That's the point. Because it's a newspaper photograph, it's going

Page 134.

to tend to reaffirm and bring up all the notions from what they have heard and read in the newspaper.

THE COURT: That's not necessarily true.

MR. JACKSON: Not necessarily, but -- but I think it would tend to do that.

THE COURT: Let me see that. How can you tell where it came from?

MR. JACKSON: Judge, I don't think it would take any genius to see that's from the newspapers. I'm saying, if that's true, whatever else I read in the newspaper --

MR. MC GILL: I don't see how that would --

THE COURT: Well --

MR. MC GILL: Wait a minute. They know he's been written about.

THE COURT: Everybody here has read about him.

MR. MC GILL: Everybody has seen the photograph, so really there's no premise at all. However, the way to eliminate --

Page 135.

we've already stipulated. We know what that is, and you've said it's accurate. That's fine. What we're going to do now is for purposes of the record, in case there is a problem on appeal, if there would be an appeal, is that we have to tie it in.

You can authenticate a record or photograph in two ways, by an individual who took it, or secondly, by someone who can look at it, and say that it is accurate and a fair representation of what that person looks like. That is clear under the law.

THE COURT: Can't you take the photos from the newspapers? They will blow one up and give it to you.

MR. JACKSON: They have a photograph, Judge. It's just that he doesn't want to use that photograph.

THE COURT: He is laying on the ground.

MR. JACKSON: That is what I'm saying.

MR. MC GILL: That's what you want?

MR. JACKSON: No, no.

Page 136.

THE COURT: I just want a photograph of the person's face.

MR. JACKSON: Judge, they have a photograph.

THE COURT: Even the one that the guy's on the ground. Can you get a photograph just of his face out of that?

MR. MC GILL: No, Judge, he's laying there and he's got blood coming out of his nose.

THE COURT: Let me see. Temporarily put this aside. Let's get the Medical Examiner in here.

MR. MC GILL: Judge, we've got to do it now, and Magilton is here. He's not going to come back.

MR. JACKSON: I'll object.

MR. MC GILL: I don't care whether you object.

THE COURT: Let's go. I have to make a decision.

(End of side-bar conference)

Page 137.

....ALBERT CHARLES MAGILTON,

after having been re-called, was examined and testified as follows:

MR. MC GILL: All right. I ask that this be marked C-59. Leave it like that, folded over.

(Photograph marked for identification as Commonwealth's Exhibit C-59.)

MR. MC GILL: May I approach the witness, your Honor?

THE COURT OFFICER: Does counsel wish to see this?

MR. JACKSON: No.

MR. MC GILL: May I approach the witness, your Honor.

BY MR. MC GILL:

Q. Mr. Magilton, you have testified this morning about an individual who ran across the street.

A. Yes, sir.

Q. That you saw in a wagon, and you say the police placed in a wagon. Do you recall that?

A. Yes, sir.

Page 138.

MAGILTON

Q. And you've also identified him in your testimony this morning as the individual that you identified at the previous hearing and sat in a particular chair. Do you recall?

A. Yes.

Q. I pointed to that chair?

A. Yes, sir.

Q. Now, I'm asking you to take a look at C-59, and just let me hold it here for you. Can you identify what C-59 is?

A. Yes, that's the gentleman I seen coming across the street, Mr. Jamal.

MR. MC GILL: Recross on that point, your Honor.

MR. JACKSON: No questions.

(Witness excused.)

THE COURT: Your Honor, Doctor Hoyer.

Page 139.

PAUL J. HOYER, (Assistant Medical Examiner for the City of Philadelphia), having been duly sworn, was examined and testified as follows:

BY MR. MC GILL:

Q. Dr. Hoyer, where are you currently employed?

A. I am currently employed by the City of Philadelphia.

Q. In what capacity, Doctor?

A. As an Assistant Medical Examiner.

Q. What is your title? What is your specialty?

A. My specialty is Forensic Pathology.

Q. Would you please tell the jury, as well as the Court, Mr. Jackson, what your qualifications are for that position and that specialty?

A. Okay. I'm a certified physician in the State of Pennsylvania and I went to Jefferson Medical College in this city. I took a four-year training in anatomic and clinical pathology at Jefferson Hospital which I completed in 1980 and that year I took board examinations in anatomic and clinical pathology.

I am currently Board eligible in Forensic

Page 140.

Pathology and took both examinations May 30 of this year. I don't know the results yet.

Q. How long have you been a physician?

A. I've been a physician, licensed physician, since July 1, 1978.

Q. How long have you been directly involved with Forensic Pathology both in study, as well as training, as well as on the job?

A. Since June 1, 1981.

Q. Is that how long you have been with this particular office, the Philadelphia Medical Examiner's Office?

A Yes, it is.

Q. Approximately how often have you conducted post-mortem examinations?

A. Approximately every three or four days.

Q. Since that particular date; is that correct?

A. Yes, that's correct.

Q. Is part of your function as an Assistant Medical Examiner and in conducting post-mortem examinations to determine causes of death?

A. Yes, it is.

Q. In how many cases have you done that? I don't

Page 141.

mean trials now, I mean actual cases where you've made that determination what the cause of death is?

A. Approximately 1,200.

MR. MC GILL: Cross-examination on qualifications.

BY MR. JACKSON:

Q. Dr. Hoyer, you indicate or you have indicated that you are Board eligible?

A. Yes, that is correct.

Q. Meaning that you have not as yet received your eligibility.

A. No, that is not correct, sir.

Q. Okay. Explain it to me since it is my understanding that you took the test. I'm a novice in this.

A. I'm sort of in an indeterminate period. I took the exam, I was eligible for the examination and I took the examination on May 30th of this year. The results of that examination will be available on July 1st. So I have or have not passed the examination but I don't know the results yet.

Q. And that examination is for what, sir?

Page 142.

A. Forensic Pathology.

Q. You've performed these previous examinations or made these prior determinations of death without being a forensic -- well, without your certification; is that correct?

A. Certification in Forensic Pathology; that is correct.

Q. And this certification is required, is it not, sir? Or tell me what purpose does a certification provide.

A. Certification in Forensic Pathology provides evidence of qualification in Forensic Pathology. It is not the only way of being qualified but it is accepted as evidence, prima facie evidence, as being qualified.

Q. Have you attempted to qualify in any other way other than this exam, sir?

A. Yes.

Q. What other ways have you attempted to qualify?

A. I've attempted to qualify by watching other people in my office who are well qualified in Forensic Patho1ogy, learning from their example and their precepts and I have been personally supervised by the

Page 143.

other professional members of the staff of the Medical Examiner's Office to help me learn Forensic Patho1ogy.

Q. Are you saying then, sir, that you can be certified without taking the exam?

A. No, but I can be qualified without taking the examination.

Q. Qualified by whose standard, sir?

A. The standard of the Court.

Q. The standard of the Court will qualify you based on your in-service training? Is that essentially what you are saying?

MR. MC GILL: I would object, your Honor, on that question.

MR. JACKSON: I am summarizing his services under a precept.

THE COURT: He knows what you're saying.

BY MR. JACKSON:

Q. That's what you're saying, right?

A. I'm sorry?

Q. You're saying, essentially, that you would be certified somehow by some action of the Court based on your in-service training.

Page 144.

A. No. I said qualified as an expert witness.

Q. Qualified as an expert witness --

A. By a Court based on one's prior training and experience.

Q. Okay. But that's still not certified, that's just qualified as an expert.

A. That is correct.

Q. How many Assistant Medical Examiners are there in Philadelphia?

A. There are three.

Q. How many of them are certified?

A. One is certified.

Q. You and another doctor are not certified?

A. That is correct.

Q. Is this your first time taking the test, sir?

A. Yes.

Q. Now, you were licensed as a physician on July 1st of the year '78; is that correct?

A. Yes, sir.

Q. Now, between July of '78 and June of '81, what were you doing, sir?

A. I was a resident in patho1ogy -- two things.

First of all, I was a resident in patho1ogy at Jefferson

Page 145.

Hospital from June of 1976, until June of 1980, and from June of 1980 through May of 1981 I was attending pathologist at Albert Einstein Medical Center in Philadelphia.

Q. And in June 1 of '81 you became an Assistant Medical Examiner?

A. Yes, that is correct.

Q. Was that as a result of a test?

A. Yes.

Q. Written test?

A. No. It's an oral examination given by the City, Civil Service Administration in Forensic Pathology.

Q. Have you written articles, sir, medical journals, medical magazines for publications of any sort?

A. Yes, I have.

Q. How many, sir, and in what subjects?

A. One on a technical subject involving histologic, a new histologic clearing agent.

Q. When was that published?

A. I'm sorry?

Q. When was that published?

A. I believe that was published in 1978 or '79. I

Page 146.

don't remember exactly.

Q. Any others, sir?

A. That's the only article.

Q. And where was it published?

A. That was published in The Pathologist.

Q. Now, the length of training that you received in Forensic Pathology, so that I am clear, began or did it begin when you became an Assistant Medical Examiner?

A. Yes, that is correct.

Q. So that prior to that time although you were a resident in pathology, you had not received the formal training in Forensic Pathology until June of '81, a year ago?

A. Yes, that is correct.

Q. And since June of 1981, you have indicated that you've, perhaps, made determinations of death in about 1,233 cases, did you say?

A. Yes, that is correct.

Q. How many times have you testified in court?

A. Approximately ten times.

Q. When was the first time? Do you recall, sir, approximately?

A. Approximately six months ago.

Page 147.

Q. So that that would have meant six months of training in the Medical Examiner's office and you were testifying as an expert in Forensic Pathology?

A. Yes, that is correct.

Q. Could you tell us generally, so that I and the jury will know, Forensic Pathology as distinguished from just pathology? What specific types and forms of training did you receive in the Medical Examiner's Office?

A. Surely. Forensic Pathology is concerned most often with the affects of injuries on bodies. I received specific training in terms of looking at gunshot wounds to determine if they're far, or if the gun is near, to help decide whether the gun is large or small, whether it's a hand gun, a rifle, a shotgun; to look at knife wounds and to be able to determine the approximate size of the knife, the type of knife; to look at blunt injuries, in other words, by a blunt instrument such as a bat or a bar; to decide the nature of the implement and further what kind of injuries one would expect to find as a result of use of these implements. I also spend quite a lot of time looking at

Page 148.

the results of motor vehicle accidents. We also spend a considerable time evaluating toxicology results. Many people take drugs, some legal some illegal and often it is important to decide if a person is impaired at the time of their death as a result of taking drugs.

Q. Dr. Hoyer, when you perform or when you make these determinations of death do you do that alone, or I mean, do you make the determination alone when you conduct the examination?

A. At the present time I do, yes.

Q. How long have you been doing them alone, sir?

A. In most cases I have been doing them alone for approximately eight months. In cases where there are particular problems I still consult with other members of the department and they with me.

Q. Now specifically with regard to your training in Forensic Pathology, pertaining to the subject matter of gunshot wounds, you've indicated that you've received some training of gunshot wounds. So that I and the jury would understand the nature of that training, so that you could be able to make certain determinations, would it be the blood splatter? Would you tell us specifically what it is that you were taught so that

Page 149.

you could make certain determinations with regard to the distance of the weapon and things of that sort?

A. Surely. Okay. Gunshot wounds are caused by a bullet being fired from a gun and the other things that come out of a gun, the hot gases, unburned powder, wadding, foreign material. So when a person or if you believe a person might have been shot by a gun, you then look at the wound and the surrounding skin. A distant gunshot wound where the gun is far away will only show evidence of a bullet perforation. It's important to decide whether the bullet is going in or coming out.

A bullet that's going in makes a hole, starts pushing in and will create an abrasion, a little ring, about the hole on the way in. A bullet that's going out goes through the skin and frequently just sort of pops through the skin so that frequently what exists is usually a slit-like opening and you don't see this abrasion.

When a gun is fired you lose a lot of smoke and burning particles accompany the discharge of the weapon. If the gun is close enough at the time it's fired to the skin, you will then see evidence of this close-range

Page 150.

fire on the skin; specifically you can see soot, black or grey material on the skin from the burning powder. You usually see soot for wounds that are not pressed hard to the skin but are within four or five, six, eight inches.

In addition, the individual burning powder particles can hit the skin, burn the skin, and stick to the skin. This is called powder stiple. Powder stiple can occur up to approximately two feet from the end of the gun. It depends a great deal on the particular gun and the particular ammunition.

I'm speaking here primarily of hand guns, rifle injuries. Shotgun injuries are a little different but I think that's probably not what we're most interested in today.

Q. That is correct, sir. You would also make determinations of, you call it powder stiple?

A. Yes, powder stiple.

Q. And lead primer from the pistol?

MR. MC GILL: Your Honor, I would object. This is quite proper cross-examination, but the qualifications is where we are now.

Page 151.

MR. JACKSON: I'm trying to get into how he was trained, and the doctor has been good enough to tell us the difference. But I really was asking his training to make these determinations.

BY MR. JACKSON:

Q. And doctor, if you could limit your testimony at this point to your training to making these determinations, as opposed to the explanation of the process itself, okay?

A. Okay.

Q. Let me -- go on. I'm sorry.

A. The other pathologists, Forensic Pathologists, at the Office of the Medical Examiner have spent time with me showing me many people, several hundred people, that have been wounded with gunshot injuries to discuss the elements that I have mentioned to you, to discuss the powder stipling and soot, abrasion cuffs, exit wounds, to discuss these elements with me to help me learn and make my own determinations as to the type of injuries.

Q. And doctor, you have in the past been able to make determinations as to the distance from the decedent

Page 152.

that the weapon was placed or used?

A. Yes.

Q. Just generally, you have received training as well with regard to the presence or non-presence of nitrates and lead primer and things of that sort, as well.

A. It's not lead primer but yes, it is primer product.

Q. You have been trained in the detection, first of all, of both of those nitrates and primers, as well?

A. I have been trained in how to collect specimens to make those determinations.

Q. You don't make those determinations yourself?

A. That is correct.

Q. Who would make it? Do you know? I know it's beyond your scope but I am just curious.

A. It depends on the particular test. Dermal nitrates, the so-called parafin test, it's not widely used at the present time. It's believed not very accurate and there are a lot of other substances that give a positive nitrate test. The test would probably be performed in the police laboratory or could be performed, again, by the toxico1ogist in our laboratory.

Page 153.

Q. Okay. Go on. I'm sorry.

A. The primer test that you were talking about, a bullet has a primer that you start out with, it hits, the hammer hits, the primer starts an explosion. This primer contains heavy metals. At the present time particularly the metals don't really matter very much. These materials start a fire, start an explosion which then ignites the remainder of the powder, and then this whole mixture propels the bullet from the gun. These heavy metals that are part of the smoke cloud that come out of a gun will deposit on anything in the near vicinity of the barrel of the gun when it's discharged. It means heavy metal residues can be detected usually by absorption analysis microscopically or by a number of different ways. But the important thing is if something is near the barrel of the gun when the gun is fired then you will get these heavy metal residues and you can state to a certainty that a gun was fired near this object.

Q. Sir, have you been trained in the process of collecting evidence for the neutron activation test, as well?

PLEASE NOTE: Page 154 is missing, however the content is continuous. The stenographer appears to have made a mistake while numbering the pages.

Page 155.

A. Yes.

MR. MC GILL: Objection as irrelevant to this particular testimony.

MR. JACKSON: It's not, your Honor.

MR. MC GILL: It's not relevant to the cause of death. He's not involved with this.

THE COURT: I sustain the objection. He's on for a limited purpose.

MR. JACKSON: I appreciate that but it simply goes to the expertise of the Medical Examiner.

MR. MC GILL: It's irrelevant.

THE COURT: He can be a nuclear expert and that's not important.

MR. JACKSON: Your Honor, may we see you at side bar for a brief moment?

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

THE COURT: He's putting him on for one purpose only.

MR. JACKSON: I understand that, your Honor, but in order for him to make that determination

Page 156.

in terms of his expertise he has to know whether or not the neutron activation test, whether there's been a fire, or he committed suicide.

THE COURT: I don't know. What are you putting him on for?

MR. MC GILL: Cause of death.

THE COURT: That's all?

MR. MC GILL: And also the injuries, to describe the injuries.

THE COURT: All right.

MR. JACKSON: But in order to make that determination, he also has to be --

THE COURT: No he doesn't.

MR. JACKSON: --he has to be able to exclude certain things.

THE COURT: No, he doesn't. Exclude what? That he was hit with a bomb or something?

MR. JACKSON: No. No.

THE COURT: He's putting him on for one purpose only. That's all I'm interested in. If you want to call him as your witness

Page 157.

and put him on, go ahead.

MR. JACKSON: Judge, that is part of the expertise of the pathologist.

THE COURT: Not necessarily. Not all pathologists are expert in all fields.

MR. JACKSON: This is in his field, Judge.

THE COURT: He is going to put him on --

MR. JACKSON: I want to find out if he's been trained to collect it.

THE COURT: I don't care if he's trained --

MR. MC GILL: It's irrelevant.

THE COURT: I'm only concerned for what he's putting him on for, that's all I am interested in.

MR. JACKSON: How can he rule out suicide if he doesn't know whether or not the person shot the weapon?

THE COURT: That's another thing. You ask him that.

MR. JACKSON: I'll ask if he has the --

Page 158.

THE COURT: No. No.

MR. JACKSON: --the qualifications to do that.

THE COURT: That has nothing to do with the qualifications. You can bring that out in cross-examination. Let's go. Come on.

(Side bar conference ended.)

THE COURT: Any other questions?

MR. JACKSON: Yes, sir.

BY MR. JACKSON:

Q. Dr. Hoyer, does your job as Assistant Medical Examiner include collecting of materials for the neutron activation test?

MR. MC GILL: Objection.

THE COURT: Sustained.

BY MR. JACKSON:

Q. Does your job as Assistant Medical Examiner include duties with respect to the trace metal activation test?

MR. MC GILL: Objection.

THE COURT: Sustained.

MR. JACKSON: No further questions.

Page 159.

BY MR. MC GILL:

Q. Doctor, in reference to your function as, or your job, as attending pathologist there at Jefferson, was that, or Einstein?

A. Albert Einstein.

Q. How long was that?

A. That was eleven months.

Q. And what were your duties as a pathologist there?

A. I had a number of duties there. I had duties in examination of tissue specimens, microscopic growths, surgical specimens from people who had operations; I had responsibilities for supervising residents who performed autopsies on people who died in the hospital.

Q. Was there also training that you received in Forensic Pathology, actual formal training; that is, book training, so to speak, in connection with your medical education?

A. There are certain elements of my formal training program which overlap between Forensic Pathology and general pathology.

Q. Doctor, your 1,200 post-mortem examinations, over what period of time were they conducted?

Page 160.

A. Those were conducted from June 1st of 1981 to the present date.

Q. Now, did you say that during the course of several of those you were supervised by other staff members?

A. Yes, I did.

Q. And who were they?

A. They were Dr. Marvin Aronson, the Deputy Medical Examiner, Dr. Robert Segal, Assistant Medical Examiner and Dr. Dr. Halbert Eillinger, Assistant Medical Examiner.

Q. And I take it these same individuals were those people you consulted with in your testimony in reference to instructions and bullet entrance, etc., which you mentioned before?

A. Yes, that's correct.

Q. Are you familiar with the amount of post-mortem examinations that Dr. Eillinger has done?

MR. JACKSON: Objection.

THE COURT: I will sustain that objection.

BY MR. MC GILL:

Q. On those trials that you have testified before

Page 161.

were you, in fact, determined that you were qualified to testify?

A. Yes.

Q. Were they in the Common Pleas Court of Philadelphia?

A. Some, yes.

Q. Where were the others?

A. In Delaware County Common Pleas.

MR. McGILL: Nothing further.

MR. JACKSON: I have something further on that.

BY MR. JACKSON

Q. Dr. Hoyer, I believe you've indicated that six months after going with the City is when you began to testify in court as an expert; is that correct?

A. Approximately, yes.

Q. Now, would that have been in December?

A. Six months would be in December, but I don't remember the exact date when I first testified.

Q. Would you recall whether or not you testified as an expert before or after December 9th?

A. No, I wouldn't.

Page 162.

Q. Is there some way we could find that out, sir?

MR. McGILL: I would object as irrelevant. The question is whether he's testified he is qualified today.

MR. JACKSON: Fine. I have no further questions as to his qualifications.

MR. McGILL: Thank you, Doctor.

THE COURT: The Court deems Dr. Hoyer as an expert in Forensic Pathology.

MR. McGILL: Yes, sir.

DIRECT EXAMINATION

BY MR. MCGILL:

Q. Did you have occasion, Dr. Hoyer, to -- you've really answered a number of the general questions of what your function is, but give us one idea, please, or at least one expression of what Forensic Pathology is. What is Forensic Pathology? What are we talking about?

A. Forensic Pathology is the examination of information of bodies, tissues, body fluids and to some extent clothing evidence with the objective of figuring

Page 163.

Hoyer - Direct

out why people died, how they died, and what was responsible for their death; more specifically, to look at someone and say they died of natural diseases, natural death, or they died as a result of being crushed, they died being crushed in a car accident, this was an accidental death, or they died because they were shot, or this would be a homicidal death.

Q. As part of your duties you already mentioned a post-mortem examination; is that correct?

A. Yes.

Q. What is a post-mortem examination?

A. It consists of three parts, post-mortem examinations consist of three parts. First we perform an investigation to find out the setting in which the body is found.

Q. Just as to your actual autopsy itself of the subject.

A. Second, we perform an external examination. We look at the clothing, tears, burns, cuts. We then examine the outside of the body for evidence of the same trauma as well as natural disease.

Finally, we perform an internal examination to

Page 164.

Hoyer - Direct

look for evidence of injuries or natural disease.

Q. Doctor, on December the 9th, 1981, did you conduct a post-mortem examination on the deceased in this case? Officer Faulkner.

A. Yes, I did.

Q. When and where did you do that?

A. This examination was done at 9:00 o'clock in the morning on the 9th of December, 1981, at the Office of the Medical Examiner, and that's 321 University Avenue.

Q. In connection with what you have referred to as your external examination, in reference to the post-mortem examination did you determine whether there were any remarkable findings in reference to injuries, external evidence of injury?

A. Yes, I did.

Q. Would you indicate to the jury, please, what they were?

A. The most important injury was that I found two gunshot wounds, one on the face which did not exit and one in the back that did --

Q. You are referring to something. I assume that that is your report.

Page 165.

Hoyer - Direct

A. Yes, it is.

Q. Is that, sir, also in line with your duties as an Assistant Medical Examiner? Did you prepare such a report?

A. Yes.

Q. Is that what you have in your possession now?

A. This is a copy of that report.

Q. Go on in terms of the external evidence of injury.

A. External evidence of injury, on the face, five inches below the top of the head and quarter inch to the left of the midline there is a gunshot wound of entrance, five/sixteen inch high and wide. So there is a gunshot wound of entrance here on the side of the nose. There is a 5-1/2 inch wide, 8 inch high area of focal thermal burns and mechanical injuries from unburned and partially burned powder particles centered about the entrance wound. This is powder stiple. I told you this is evidence of a gun being within about 23 inches of the target. There was no soot observed. The upper and lower eyelids on both the right and left side show blue-purple swelling and discoloration. Bloody fluid is issuing from the mouth and tracheostomy

Page 166.

Hoyer - Direct

tube.

Q. Now you've indicated, I think, already that the muzzle of the gun and the target which in this case would have been the injury, you indicated was within 23 inches, was that?

A. Yes, that's correct.

Q. Now sir, that would be approximately about that much?

A. Yes, and less than that, yes.

Q. The muzzle of the weapon to the target; is that right?

A. Yes.

Q. Let's take a 1ook at number two there, external evidence of injury of the second wound.

A. Okay. In the left side of the upper back, 11 1/2 inches below the top of the head and 1 inch to the left of the midline --

THE COURT: Now if you could --

BY MR. McGILL:

Q. Perhaps, doctor, I'll make it easier. Doctor, if I may, why don't we use this. This will be a little easier, I think.

A. Okay.

Page 167.

Hoyer - Direct

MR. McGILL: I'd ask that this be marked C-60.

MR. JACKSON: All right.

THE WITNESS: Okay. On the upper back, 11-1/2 inches below the top of the head and 1 inch to the left of the midline is a 3/8 by 3/8 inch gunshot wound of entrance having a 1/16 to 3/16 inch wide pink abrasion cuff. So that would be here, almost at the base of the neck a little to the side.

BY MR. MCGILL:

Q. Would you indicate or would you show also Mr. Jackson.

MR. JACKSON: That's fine.

BY MR. MCGILL:

Q. And that is how many inches from the top? Eleven and a half?

A. Yes.

Q. Can I, Judge?

So, 11 inches -- of course it's difficult on this kind of a chart -- 11 inches from the top of what?

A. The head.

Q. Okay.

Page 168.

Hoyer - Direct

A. Eleven and a half inches from the top of the head and one inch to the left of the midline --

Q. Go on, please.

A. This entrance has an abrasion cuff about it. That's a part of how we know it's an entrance wound. A hemorrhagic tract begins with the entrance wound and proceeds with the soft tissue of the upper back and neck. So it goes through here, in the anterior left side of the neck, 11 inches below the top of the head and 2 inches to the left of the midline is a 3/8 by 1/8 inch gunshot wound of exit.

So now we are going to go over to the front view on the left side. There is an exit wound somewhere like here --

Q. I'm going to interrupt you, Doctor. I believe you may have used the word, "entrance" in reference to that wound?

A. I'm sorry. That's an exit wound.

Q. Exit wound?

A. Yes, exit wound.

Q. Okay.

A. Then there is a tract from the entrance onto the exit wound. This tract is back to front, right to

Page 169.

Hoyer - Direct

left at approximately 15 degrees. So it's back to front --

Q. Would it be easier to use me.

A. Okay. It's entering over here, going back to front, right to left, at approximately 15 degrees and down to up at approximately 33 degrees. So it's going approximately like this. So we know then that the gun at the time it's fired has to be approximately here. We don't know the absolute position of the body, but, we know the relative position of the gun to the body must be, as we said, no more than this far away.

Q. By "this far away" would you hold that right there, please, without moving. Would you measure that?

A. Nineteen inches is what I have.

Q. Would you also mark on that chart the location of the first, the wound, number one wound there?

A. Okay. The other entrance wound just to the left of the midline, just in the nose.

Q. By the way, in reviewing the slides of the body did you note any other exit wounds around the area of the exit wounds around the neck, and if so,

Page 170.

Hoyer - Direct

what were they a result of?

MR. JACKSON: Your Honor, I am going to object. I think he said, "in reviewing the slides." If that's so, I object.

THE COURT: Could I see you?

MR McGILL: Judge --

THE COURT: Rephrase your question.

MR McGILL: I can end it right here. The slides of the body --

THE WITNESS: Yes, I have taken photographs of the body.

BY MR. MCGILL:

Q. And those you review from time to time in reference to your testimony?

A. Yes, we do.

Q. Have you reviewed it in reference to this testimony today?

A. Yes.

MR. JACKSON: I would object, your Honor, unless he took the slides. I don't know what he is talking about.

BY MR. MCGILL:

Q. Do you recognize the slides of being the slides

Page 171.

Hoyer - Direct

of the body of the deceased on whom you conducted your post-mortem examination?

A. Yes.

MR. JACKSON: I would still object. He examined the body. Why not the body rather than slides?

BY MR. MCGILL:

Q. Well, in your entire review of the report and of your findings in reference to the post-mortem examination, did you find any other exit wounds around the neck area, and if so where?

A. Okay. In reviewing the slides, the Kodachrome slides of this case, there's a second smaller exit wound on the anterior surface of the neck a little above and a little closer to the midline from the major exit wound.

MR. JACKSON: Your Honor, I object. May we see you at side bar, please?

MR. MCGILL: I would object going to sidebar, Judge. I think on the face it's admissible.

THE COURT: Well, I don't know what he wants to talk about.

Page 172.

Hoyer - Direct

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

MR. JACKSON: It's not in here. It's not in here.

MR. MCGILL: Of course its not.

MR. JACKSON: He's not going to testify if it's not in here. Judge, he is going to testify from slides that somebody else took from some other time that I don't know about.

THE COURT: Where are you going?

MR. JACKSON: He can't do that. It's not in here.

MR. MCGILL: What's the problem?

THE COURT: I don't know. That's what I'm trying to find out from you.

MR. MC GILL: Where am I going?

THE COURT: Yes.

MR. MCGILL: It's a part of the body --

THE COURT: Did he see this?

MR. MC GILL: On the slides.

THE COURT: Who took the slides?

MR. MC GILL: He has the slides.

Page 173.

Hoyer - Direct

THE COURT: Who took the slides? Did he?

MR. MC GILL: No, he didn't take them. Maybe he did. He doesn't take them but, however, he observed the slides.

MR. JACKSON: No.

MR. MCGILL: He had reviewed the injuries on the body, on the body that he examined himself, and he recognized that as the body he examined, and he knows that those slides are taken as part of the normal course of things.

MR. JACKSON: Can we examine this man outside the hearing of the jury?

MR. MC GILL: I don't understand this.

MR. JACKSON: If you listen to me, if you listen, I'll tell you.

MR. MCGILL: There's no other additional entrance.

THE COURT: What's your objection?

MR. JACKSON: I have a copy of what purports to be a Medical Examiner's report. I'm hearing something for the very first time in terms of bullet wounds. He's looking at slides

Page 174.

Hoyer - Direct

somebody else took at some undetermined time. How can he do that?

MR. MC GILL: Why don't we go through this? I can't handle this anymore. It's irrelevant and improper. I don't want to delay any longer.

MR. JACKSON: Fine.

(Side bar conference ended.)

BY MR. MCGILL:

Q. Doctor, I'll withdraw that last portion. In reference to your internal -- you did an internal examination, did you, also?

A. Yes, I did.

Q. Now, as part of your evidence of injury did you note anything there?

A. Yes.

Q. Any remarkable findings?

Q. Yes.

Q. Would you indicate what that was?

A. Okay. A hemorrhagic tract begins with the gunshot entrance going into the nose, proceeds through the bones of the face and into the skull. The skull has multiple, that is, multiple interlacing fracture

Page 175.

Hoyer - Direct

involving the right and left orbital plate. That is the bones below the eyes -- above the eyes. I'm sorry, above the eyes.

Q. I'm going to stop you there and ask what significance is that? Calvarium -- is that the word? "The calvarium has multiple ramifying fractures," what significance is that?

A. It means there was a great deal of force and engineering in the skull when that bullet entered, enough force so the skull is broken from the shot of the bullet entering.

Q. Would that be consistent with high velocity ammunition?

MR. JACKSON: Objection. You haven't qualified him.

THE COURT: I'll let him answer.

THE WITNESS: Yes, it's consistent with relatively high velocity hand gun ammunition.

BY MR. MCGILL:

Q. You say, "relatively high velocity?"

A. Yes.

Q. Would you include within that group being plus P ammunition?

Page 176.

Hoyer - Direct

MR. JACKSON: Objection. He hasn't been qualified, your Honor.

THE COURT: Can you lay the foundation?

BY MR. MC GILL:

Q. Have you had an opportunity, sir, to, in your past, review, in reference to your post-mortem examinations, reviewing both your own as well as others, have you had an opportunity to see the damage and injury caused by various types of bullets and projectiles?

A. Yes, I have.

Q. Included within those projectiles are the Plus P type of bullets?

A. Yes.

Q. Do you know what a Plus P is?

A. Yes.

Q. Approximately how often would you have reviewed and observed any kind of examination whether yourself or with others where a plus P bullet was involved?

A. Approximately ten times in the last year.

Q. And over that course of time have you observed the amount of damage that that particular injury or that particular projectile would cause?

A. Yes.

Page 177.

Hoyer - Direct

Q. Is this type of damage consistent with the Plus P velocity?

A Yes.

Q. Now Doctor, would you go on with the other evidence of internal injury?

A. Okay. There are also multiple fractures of the right and left parietal bones, that is, the bones in the back of the head up here, and multiple fractures of the occi bone, right in the middle of the back of the head.

The hemorrhagic tract begins at the entrance of the gunshot wound in the tract, received through the nasal sinuses, along the orbital surface of the left front lobe. It goes through the left bone of the face, enters the cranial cavity where the brain is, and starts travelling along the surface of the brain. There's extensive --

Q. Before you go on to that, would you tell the jury what a hemorrhagic tract is.

A. That means that there is a hole, a tract, where the bullet went through, that there's been bleeding into.

Q. Go on.

Page 178.

Hoyer - Direct

A. There's extensive pulpification of the base of the cerebrum. That is the bullet caused destruction and softening of the brain tissue surrounding the tract as it passes through; turns the brain from a fairly normal consistency to something fairly soft like oatmeal. Sort of like a mushy material. The track continues through the right parietal and occipital lobes, travels all the way through the brain, and a generally round, beveled out, slightly displaced fracture is identified in the right occipital bone. That is back here we see a little round traction of the bone where the bullet hit the brain, made a fracture but did not go through. Nearby a deformed lead projectile is recovered.

Q. Go on.

A. It's washed and dried. It measures 10 millimeters across the base and is 12 millimeters high. It is markedly deformed. So we have a projectile about this high and about this wide.

Q. Now, the extensive pulpification that you mentioned, where there is sufficient velocity in the projectile that causes the damage and there is sufficient entrance wound in terms of diameter, will this at

Page 179.

Hoyer - Direct

times cause any kind of effect in the head as a result of the entrance of the projectile?

A. Well, the wound or the bullet in this case causes totally complete incapacitation. It causes a momentary swelling of the skull as it pauses, and that's what these fractures that we described are, are a reflection of momentary increasing pressure of the bullet going in. You may see some of the tissue being blown back out through the hole.

Q. All right. Now, Doctor, let me ask you, in reference to the debilitating effect of that, how would you describe that, that shot?

A. Well, this shot goes through the major portion of the brain with great velocity, extensive tissue destruction and, therefore, causes complete instantaneous disability and death.

Q. Let me ask you, in reference to the other wound now, that's your back wound that you have indicated, number two wound on external evidence of injury --

A. Yes?

Q. -- you have gone into some detail in reference to that. What kind of effect would that have to the system in terms of immobilization or debilitation?

Page 180.

Hoyer - Direct

A. Well, it would cause pain and there will probably be a shock associated with the blow of being hit of the bullet. But it did not hit any vital structures and, therefore, it would not be any significant debilitation. The person would be able to do almost anything they were able to do before.

Q. That would include walking or moving their arms or hands?

A. Yes, that's correct. There might be sane pain associated with moving the arm on that side, as I recall, the left side.

Q. I was going right and left.

A. No, there might be some pain with moving the left arm but the left arm would be functional and the right arm would not be affected at all.

Q. A11 right. Doctor, you stated there was a projectile or at least a portion of a projectile that you referred to as a deformed lead projectile recovered. What did you do with that?

A. Okay. The projectile was placed in an envelope labeled "Bullet, head" and then this envelope was given to a member of the Philadelphia Police Department.

Q. Do you have the name of the person that you gave

Page 181.

Hoyer - Direct

it to there and could I have --

A. It was given to Police Officer Deyne-1606.

Q. May I have C-39, please? All right. I ask you to take a look at C-39, please.

A. Yes.

Q. All right. Can you identify C-39?

A. Yes. This is the bullet and envelope that I previously described.

Q. Thank you. You can put that away, then. Doctor, looking again at your report, would you take a look at external evidence of injury number 7. What is that?

A. There's a 1 and l/4 inch wide, 3/4 inch high superficial red-brown skin denudation in the bottom center of the left knee. That is there is a scrape at the bottom of the left knee, right in here, an inch and a quarter high and three-quarters of an inch high.

Q. Is that kind of injury consistent with a fall to the left knee?

A. Very much consistent.

Q. Doctor, do you have an opinion based on reasonable medical certainty to the cause of death of Officer Faulkner?

Page 182.

Hager - Direct/Cross

A. Yes, I do.

Q. And what is that opinion?

A. That Officer Faulkner died as a result of gunshot wounds to the back and head.

Q. And on what is that opinion based?

A. That opinion is based on my examination of the body and the internal evidence and external evidence of injury that I described to you.

Q. And also your experience; is that correct?

A. Yes.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION

BY MR. JACKSON:

Q. Doctor, you indicate that the cause of death is as a result of gunshot wounds; is that correct?

A. Yes, that's correct.

Q. Correct me if I am wrong, when you testified with regard to the back injury you indicated that that wound would not cause any interference with a person's regular functions?

A. That's correct.

Q. But should we assume that at some point it would,

Page 183.

Hoyer - Cross

assuming, for one moment, we don't have the facial injury, just the back injury?

A. Yes.

Q. That would have no debilitating effect whatsoever?

A. It would have a small debilitating effect, indeed it would.

Q. When you say small, in the minds of us novices, what's a small debilitating effect? Is it like a toothache, earache?

A. It would hurt enough that you would want to get it treated, that you'd have some interference with the use of your left hand and left arm but you could use it.

Q. Now, you're certain of that, right, doctor? I mean, I just want to know that it hit no vital parts of the body.

A. That's correct, yes.

Q. So then the person would want to get it treated but it would not interfere with them walking, talking or doing anything?

A. Not to a significant degree, no.

Q. Now, when you indicate that your finding of

Page 184.

Hoyer - Cross

death is gunshot wounds, it's really just the facial wound, isn't it true?

A. There is a small contribution from the back wound, it would not be a large contribution but there is a small finite contribution from the back wound.

Q. Well, if you could venture some estimation in terms of percentage, would 99 percent of the death be caused by the facial wound? Would that be fair to say?

A. I tend not to put percentage -- I don't think these things are well suited to put percentages on.

Q. Okay. Forgive me, then. Well, let me try it this way, sir: Would the cause of death, the contributing nature of the background, be a result of loss of blood only?

A. That would be a major component of it.

Q. Now, based on your experience, can you tell us which wound entered first?

A. Not from the wound alone, no.

Q. Can you tell us from anything that you've examined, and not what you may or may not have heard, but based on your examination.

MR. MC GILL: Objection. He's just

Page 185.

Hoyer - Cross

answered that he could not on his examination alone.

BY MR. JACKSON:

Q. Any suggestion that you would make with regard to the sequence would be based on some information that someone else provided you with; is that correct?

A. And general information that I have.

Q. But that other information would be necessary for you to make that determination.

A. In other words, I know a lot about wounding patterns in general, not specific to this case that I can use in this case that I believe might be helpfu1.

Q. Well, can you say within some degree of medical certainty with respect to this case? First of all, can you give that testimony?

A. Not with a degree of medical certainty, no. But I have a suggestion.

Q. We11 unfortunately, doctor, the suggestion by you in this instance was no better than mine.

MC GILL: Objection to comments, your Honor.

THE COURT: Please. Just ask the questions.

Page 186.

Hoyer - Cross

MR. JACKSON: Yes, sir.

BY MR. JACKSON:

Q. Now Doctor, aside from determining the cause of death, did you also perform various and other tests of Officer Faulkner?

A. Yes, I did.

Q. Can you tell us what tests you performed, sir? Go on. I'm sorry.

A. I submitted specimens for toxicologic studies, specifically submitted blood, stomach content, bile, liver, and urine. And I submitted blood for cerelogic examination.

Q. And all of that is normal -- is that correct, sir? Normal procedure?

A. Yes, it is.

Q. Did you attempt to collect any primer or any nitrates?

A. No, I didn't.

Q. Is that normally a function of your office, sir?

MR. MCGILL: Objection, your Honor.

THE COURT: Sustained.

BY MR. JACKSON:

Q. You have the entire Medical Examiner's folder

Page 187.

Hoyer - Cross

there, sir, file with you?

A. No, I don't.

Q. You have only the portion which you prepared?

A. I have my report which includes several reports that were sent back to me.

Q. Dr. Hoyer, when you performed your examinations to make your determinations are they made solely and exclusively as a result of what you see and feel and touch or --

A. No.

Q. You do receive oral information.

A. Oral and written information.

Q. From various other sources?

A. Yes.

Q. And you use that information in conjunction with whatever kind of empirical information that's available?

A. Yes.

MR. MCGILL: I would have to object, your Honor. Is he talking about solely about the post-mortem examination?

MR. JACKSON: Yes, I am.

MR. MC GILL: On the deceased?

Page 188.

Hoyer - Cross

MR. JACKSON: Yes, I am.

MR. MC GILL: Okay.

MR. JACKSON: Your Honor, may I have just a moment, please?

BY MR. JACKSON:

Q. Dr. Hoyer, your examinations, the post-mortems that you conduct, they are pretty much assigned on a regular kind of basis; is that correct?

A. Yes.

Q. And you perform those tests that you prove are appropriate in order to determine the cause of death?

A. I order quite a variety of tests, some of which are done routinely and some of which are ordered specifically where there's an indication.

Q. Where there is an indication. And that indication would be determined by you, what additional tests will be ordered; is that right?

A. Yes, that's correct.

Q. Are there times when someone other than yourself would make a specific request for tests? Maybe a police officer, assigned detective, I don't know, supervisor or something like that.

MR. MC GILL: Objection. I would

Page 189.

Hoyer - Cross

object if it's anything outside this case it would be irrelevant to his examination.

MR. JACKSON: Your Honor, I assure you, it's not outside this case.

MR. MCGILL: I would object.

THE COURT: Rephrase your question.

BY MR. JACKSON:

Q. Were any additional tests conducted in this case?

A. No.

Q. Not by you?

A. That's correct.

Q. Did anyone make a request to you to perform any additional tests?

MR. MCGILL: Objection.

THE WITNESS: That were made?

MR. JACKSON: I want to know if any were requested.

THE COURT: He said that were made.

THE WITNESS: I don't know if they were or not.

BY MR. JACKSON:

Q. Did you request any additional tests?

A. I'm sorry, sir?

Page 190.

Hoyer - Cross

Q. Did you request any additional tests at all with regard to Officer Faulkner?

A. Beyond the tests that I described to you?

Q. Yes, sir.

A. No, I did not.

MR. JACKSON: Your Honor, I have no further questions of this witness at this moment, but I reserve the right to call him as my witness at a later point.

MR. MC GILL: Your Honor, I will certainly make him available consistent with the Doctor's schedule, of course, at the Court's convenience.

Thank you, Doctor.

Do you have any questions, your Honor?

THE COURT: No.

- - - -

(Witness excused.)

- - - -

(A side bar conference was held off the record.)

Page 191.

THE COURT: All right. We are going to adjourn court until 9:30 tomorrow morning.

- - - -

(Court adjourned at 4:30 o'clock until Saturday, June 26, 1982, 9:30 o'clock.)

- - - -





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