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COMMONWEALTH v. POWELL (01/03/68)

decided: January 3, 1968.

COMMONWEALTH
v.
POWELL, APPELLANT



Appeals from judgment of Court of Oyer and Terminer of Philadelphia County, Nos. 3829 to 3831, inclusive, 1966 Term, in case of Commonwealth of Pennsylvania v. Gregory Powell.

COUNSEL

Arthur F. Earley, for appellant.

Michael M. Baylson, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell and Mr. Justice Jones dissent.

Author: Cohen

[ 428 Pa. Page 277]

Appellant was convicted of murder in the first degree, aggravated robbery and aggravated assault and battery. The jury imposed the penalty at life imprisonment on the murder conviction. This appeal is from the denial of appellant's post-trial motions for an arrest of judgment or the grant of a new trial.

The evidence as presented by the Commonwealth established that the deceased and her sister were assaulted and robbed as they were approaching the entrance to their apartment. As a result of multiple injuries to the head inflicted by the person committing the assault, the deceased died early that evening.

The evidence linking appellant to the crime consisted of the testimony of a friend of appellant's brother that he was with appellant on the day of the assault. He further testified that appellant kept talking, rubbing his hands and looking down the street. Appellant then told the Commonwealth's witness "he was going to get these ladies' pocketbook." The witness then stated he immediately looked down the street and saw two women on the left-hand side of the street. He testified that they were the only women in sight, and that the sister of the deceased, who was in court on the day of his testimony, was one of the women. The witness said he did not see the attack but approximately five minutes after his conversation had ended with appellant, he heard the sister of the deceased screaming, "murder, thief, murder, thief."

Appellant contends that he is entitled to an arrest of judgment. We disagree. The only question for our determination is whether there was sufficient circumstantial evidence of appellant's guilt beyond a reasonable

[ 428 Pa. Page 278]

    doubt. Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157 (1963); Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960).

We believe the testimony revealing the manner and thoughts of appellant only a short time prior to the commission of the crime and what transpired shortly thereafter was sufficient circumstantial evidence to convict appellant. On this basis appellant is not entitled to an arrest of judgment.

However, appellant alleges another ground in support of his motion for a new trial. He vigorously contends that the trial judge erred in admitting in evidence certain color ...


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