Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, March T., 1965, No. 1750, in case of Commonwealth of Pennsylvania v. Howard Edwards.
Bernard L. Segal, with him Needleman, Needleman, Segal & Tabb, for appellant.
Michael M. Baylson, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno took no part in the consideration or decision of this case.
This is an appeal from the judgment of sentence of five to twelve years imposed on appellant following conviction by a jury of second degree murder and denial of post-trial motions.
At approximately 8:15 p.m. on January 7, 1965, at 52nd and Girard Avenue, in Philadelphia, a scuffle occurred among three people. David Nutter was shot in the buttocks and fell to the ground in the middle of the intersection. An eyewitness bystander, Charles J. Wilson, identified appellant as one of the persons who attacked David Nutter, and also saw appellant pistol-whip David Nutter as he was lying in the street. Wilson heard David Nutter say "Howard, I'm going to get you," as appellant stood over Nutter with a pistol. A Philadelphia police officer, Michael Pisanelli,
approached the intersection in response to alarmed citizens' cries. He observed two persons running south on 52nd St., and briefly but unsuccessfully gave chase. Officer Pisanelli returned to the intersection and observed David Nutter, bleeding profusely, lying in the street. His brother, Edward Nutter, also came over. Edward heard his stricken brother say, while lying on the street, "Howard from downtown shot me," or "Howard from downtown got me." Asked who "Howard" was the deceased said, "Ronald Camp and LeVay would know him." Camp and LeVay were police officers. Camp testified at trial that appellant and deceased exchanged hostile words about one hour before the shooting.
Edward drove his soon-to-be-dead brother to Misericordia Hospital. Shortly after 9:00 p.m. another Philadelphia Police officer, Herbert Quarterman, had a conversation with David Nutter in which Nutter stated seven or eight times, "Howard shot me . . . Camp knows him."
Officer Quarterman testified as to David Nutter's condition at the hospital: ". . . prone on his back. His eyes were closed. He was breathing quite heavily. He screamed several times and he had blood at his hair line and forehead. He had a protrusion of the skin below his navel as though he had a double navel. Blood was coming from both sides of him on the litter." At 9:30 p.m., David Nutter was pronounced dead of a gunshot wound.
Appellant claims that the court below erred in several respects in admitting in evidence certain statements of the decedent under exceptions to the hearsay rule, and in charging the jury.
The court admitted the deceased's statement heard by Wilson under the res gestae (spontaneous declaration) exception to the hearsay rule. It did likewise for the ...