Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1965, No. 635, in case of Commonwealth of Pennsylvania v. Marion Wilson.
David C. Harrison, with him Mitchell A. Kramer, and Kramer & Harrison, for appellant.
William H. Wolf, Jr., Assistant District Attorney, with him James Fitzgerald and Alan J. Davis, Assistant District Attorneys, 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. Mr. Chief Justice Bell concurs in the result.
This is an appeal, after jury trial and denial of post-trial motions, from the judgment of sentence of life imprisonment imposed by the Court of Oyer and Terminer of Philadelphia County. The facts are set forth in the opinion of the court below:
"At about 6:00 p.m. on Christmas day, 1964, Wakefield Conway, Jr., a 45 year old man, walking westwardly in the 2700 block of Park Avenue (in the area
of Temple University) was stabbed six times by three youths. This 5' 5 1/4" tall, and 131 lb. man fell backward, flat on his back. His wallet was emptied and thrown near his head. The youths fled. There was an abrasion of the left side of the victim's nose, and an abrasion on the right side of his forehead in two places. There were four stab wounds in the stomach area and two stab wounds of the upper right arm and right shoulder. The four stab wounds of the stomach involved a cutting of the small bowel in two places, a cutting of the stomach in two places, and a cutting of the liver and the aorta. The direct cause of his death was the massive fatal blood loss caused by the stab wounds of the stomach.
"He bled to death in the few minutes it took the police to arrive. Later, his wife and the father of the dead man went to the morgue and identified and claimed the body.
"The attack had been witnessed. It occurred in the full light of the illumination of a street light, thirty feet away. Two young girls had been almost directly across the street, less than fifty feet away, watching. Their view was unobstructed. One of these, Emma Holliday, age eleven, got a good look and recognized the assailants as three teenagers she knew very well from the neighborhood. The three robbers she identified were: Marion Wilson, Boise Wright, and Robert McSwain. She saw Marion Wilson actually stab the man.
"Emma Holliday and a girl friend, Cynthia Jackson, had been running west on Seltzer Street toward the 2700 block of Park Avenue. They were running ahead of two boy companions who had stopped in the middle of Seltzer Street to pick up coins that had dropped. On reaching the southeast corner of Park Avenue and Seltzer Street the two girls stopped. Emma's attention was directed across the street, and,
leaning over a hood of a car parked on Park Avenue, she looked and saw three young men encircle a man. One of the three boys, Marion Wilson, raised a shiny bladed knife in his hand and brought it down, stabbing the man. The man fell from his standing position onto his back. As this man [lay] motionless and quiet, Marion Wilson put his hands into the man's pockets and then put his hands back into his own pockets. Then Marion Wilson ran south on the sidewalk and ducked into an alley, following his two companions. Emma Holliday went home and told her mother and father what she had seen. Her father told her to forget about it and not tell anyone. The next night Emma told the police of what she saw.
"Emma Holliday had known Boise Wright for the past six years; she had known Marion Wilson and Robert McSwain for the past three years. All three lived in her neighborhood, which was the neighborhood of the murder. The three boys were friends and were always together. She had seen them about every day during the years she knew them.
"Mr. James Prescott, the step father of Robert McSwain, one of those identified by Emma Holliday, testified that his step son did live in the neighborhood during the years Emma said she knew him. He further testified that his step son, Marion Wilson and Boise Wright went to high school together and were all in the same class and that the three boys were always together everyday. Mr. Prescott testified that his step son and Boise Wright had been together for several hours during the late afternoon of Christmas Day, and that the last time that he saw them they were leaving a home that was approximately a block from the place of the murder -- at about the time of the murder.
"When Cynthia Jackson, age 10, looked across the street with Emma Holliday she ...