Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, Dec. T., 1962, No. 59, in case of Commonwealth of Pennsylvania v. John Cunningham.
David B. Fawcett, Jr., for appellant.
Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen and O'Brien, JJ. Opinion by Mr. Chief Justice Bell.
John Cunningham was indicted for murder and voluntary manslaughter. At his trial he was represented by a Court-appointed attorney. He pleaded not guilty and was tried by a Judge and jury. On June
, 1963, the jury returned a verdict of guilty of murder in the second degree. Defendant filed a motion for a new trial, which was refused. On October 11, 1963, defendant was sentenced to undergo imprisonment of not less than ten or more than twenty years.
On October 8, 1964, Cunningham filed a petition for a writ of habeas corpus challenging his conviction on the ground that he was denied the assistance of counsel on appeal. The lower Court denied the petition, and we reversed. Pursuant to our Order the lower Court appointed counsel and the Court-appointed counsel filed this direct appeal.
The facts surrounding this crime may be briefly summarized and will be considered in the light most favorable to the verdict winner, i.e., the Commonwealth:
On October 14, 1962, the defendant, John Cunningham, drove his brother Roosevelt Cunningham and William Lowrey to a secluded spot. By prearrangement, the victim, Brodie Lipscomb, followed them in his car. Roosevelt Cunningham left the car and shots were heard. Lipscomb died as the result of these shots. From the evidence, the jury could have found that defendant knew (1) the reason why Lipscomb had been lured and went to the secluded spot and (2) that defendant's brother was going to kill him. Moreover, the gun used to kill Lipscomb was defendant's gun. A search of the automobile revealed that cartridges which fitted the murder gun were hidden in the well of the trunk of the car which defendant drove that night. Subsequently defendant joined in acts and activities calculated to cover up the murder. For example, he went to the house of Ellen B. Smith and put two guns under a mattress. Moreover, Joseph Gilliott testified that after the murder, defendant and his brother came to his house and asked him to be an alibi witness.
Defendant contends (1) that his conviction was based upon insufficient evidence to support a verdict of second degree murder, and (2) that his car was illegally searched and the fruits of this search, viz., ...