Appeal, No. 149, Jan. T., 1963, from judgment of Court of Oyer and Terminer of Philadelphia County, Oct. T., 1961, Nos. 489 and 490, in case of Commonwealth of Pennsylvania v. Robert Ogden Frazier. Judgment reversed and new trial granted.
Herman I. Pollock, Defender, with him Gary Charles Leeds, for appellant.
William F. Killeen, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr.. First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE EAGEN
The appellant, Robert Ogden Frazier, was tried on an indictment charging murder. The jury found him guilty of voluntary manslaughter. Motions in arrest of judgment and for a new trial were dismissed. He was sentenced to spend an indefinite term in a state
correctional institution, the minimum being fixed at two and one-half years and the maximum at five years.*fn1 From the judgment, this appeal was filed.
A study of the record discloses a most unusual factual background. The pertinent portions of the Commonwealth's evidence may be summarized as follows:
On February 4, 1960, about 1:00 o'clock a.m., the defendant aroused neighbors and told them that something terrible had happened to his wife, Sarah Frazier. The police were called about 1:15 o'clock a.m. and the first officer arrived at the scene about 1:19 o'clock a.m. Sarah Frazier's dead body was lying on the floor in the living room of her home at 2505 North Seventeenth Street in the City of Philadelphia. Rigor mortis was already evident in the ankles, wrists and jaws.*fn2 A superficial examination disclosed the presence of gunshot wounds. Twenty-two inches from the body a 32 calibre revolver was lying on the floor. It contained three empty casings and apparently had been fired three times. No finger prints were discernible on the gun, due to the roughness of the handle. A bullet hole was found in the wall of the dining room. Two discharged bullets were found, one in the dining room, one in the living room.*fn3 The house was neat, clean and in good array, except in the area of the hole in the wall of the dining room where plaster still remained on the floor. No evidence of a struggle was present.
The defendant was questioned and stated that on February 3rd he had arrived at his home on Seventeenth Street about 5:45 o'clock in the late afternoon; that his wife returned from work about 7:00 o'clock in the evening; that he left the home about 8:00 p.m. and that his wife was alive. He visited friends in another section of the city until about midnight and ...