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COMMONWEALTH v. CHEATHAM (03/15/68)

decided: March 15, 1968.

COMMONWEALTH
v.
CHEATHAM, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, Aug. T., 1965, No. 1589, in case of Commonwealth of Pennsylvania v. Francis W. Cheatham.

COUNSEL

Philip P. Kalodner, with him Robert H. Arronson, for appellant.

Lewis P. Mitrano, 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 O'Brien.

Author: O'brien

[ 429 Pa. Page 200]

This is an appeal from the judgment of sentence of the Court of Oyer and Terminer of Philadelphia County. Appellant, Francis W. Cheatham, was convicted, after trial by jury, of murder in the second degree. After motions for a new trial and in arrest of judgment were denied, he was sentenced to a five to twenty year term.

The decedent, one Bernard Kennedy, was stabbed to death in a bar early on the morning of July 8, 1965. According to one John C. Scott, the Commonwealth's principal witness, four people, including the decedent, were drinking together in a bar. The other three were Scott, one Larry Maddox, and a girl, one Geraldine. Appellant came in and asked them for some of their beer. The decedent stated that it was Scott's beer. Scott gave appellant one drink, but refused him a second. Appellant then pulled a knife, according to Scott. Geraldine then suggested that they go across the street to another bar. They did this, but fifteen or twenty minutes later, appellant entered the second bar. Geraldine took him outside and, in the presence of Scott, cautioned appellant not to bother other people who were drinking. Appellant again entered the second bar and without any argument stabbed decedent as he sat at the bar.

One of appellant's contentions is that the verdict was against the weight of the evidence.

However, we are convinced that there was enough evidence to support the jury's verdict. Appellant points out a number of alleged weaknesses and inconsistencies in the Commonwealth's case. These are: (1) Although the bar where the homicide occurred was crowded and narrow and would have required appellant to wend his way some twenty-five feet through a narrow space after Scott witnessed him stabbing the

[ 429 Pa. Page 201]

    decedent, appellant was able to leave the bar without being stopped by any of the patrons and without any sounding of an alarm by Scott. (2) Scott made no effort to request anyone at the bar to telephone the police and went to several other bars in the neighborhood before he sounded the alarm or contacted the police. (3) The homicide purportedly occurred during the only five minutes in the course of the evening when Larry Maddox, Scott's and decedent's companion of the evening, was absent in the men's room and therefore, unavailable to witness the homicide. (4) The medical examiner's testimony established that the decedent had had a substantial amount to drink within the hour prior to his death, while Scott's testimony was that the decedent had had only one drink during the entire course of the evening. (5) A significant part of the Scott testimony at trial, with respect to the defendant having been taken outside the bar by Geraldine immediately prior to the stabbing, was completely omitted by the witness in his initial narrative to the police during his interrogation. (6) There was only one rip in the shirt of the decedent, although there were two knife wounds which had caused his death, and the location of the knife wounds did not correspond with the location of the rip on the shirt.

Appellant contends that the facts are more consistent with Scott's having waited until the decedent became intoxicated and until Maddox left the scene before taking the opportunity to stab the decedent, next to whom he was sitting. Appellant's appearance on the scene in an intoxicated condition during the course of the evening made him a perfect nominee from Scott's point of view to be accused of the crime. Although appellant reaches one conclusion from the ...


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