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COMMONWEALTH v. CARR (11/11/69)

decided: November 11, 1969.

COMMONWEALTH
v.
CARR, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Erie County, No. 1234 of 1967, in case of Commonwealth v. Melvin Carr.

COUNSEL

Robert N. Spaeder, with him James F. Toohey, for appellant.

Richard D. Agresti, Assistant District Attorney, with him William E. Pfadt, District Attorney, for Commonwealth, appellee.

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

Author: O'brien

[ 436 Pa. Page 126]

This is an appeal by Melvin Carr from the judgment of sentence of the Court of Oyer and Terminer of Erie County. Appellant, after a trial by jury, was found guilty of second degree murder, and after denial of his post-trial motions, was sentenced to a term of seven and one-half to fifteen years' imprisonment.

The facts of this case are set forth in our opinion, decided this date, affirming the conviction of appellant's co-defendant, Royall Collins, 436 Pa. 114, 259A. 2d 160 (1969).

Appellant's counsel, like Collins', are very able, and have urged numerous points upon appeal. First of all, appellant contends that the evidence was insufficient to support the verdict, and that the court should have granted his demurrer. We rejected this contention on virtually the same evidence in Collins and we do so here. Stanyard, the principal, testified that he pointed the gun at the deceased, and fired in the air. The witnesses who immediately appeared found the victim lying on the floor dying of a gunshot wound. The fact that Stanyard never testified that he shot directly at the deceased, but rather fired in the air, hardly prevents there being enough evidence upon which to convict. This is the strongest possible circumstantial evidence.

Appellant raises two more issues that were dealt with at length in Collins and need not be dwelt upon here. The issue of Stanyard's competency is one. The second is the effect of the line-up at which Stanyard identified Carr.

Appellant, like Collins, also complains of the admission of a statement he made to interrogating officers. However, the evidence reveals that Carr was fully advised of the charges against him and his rights under

[ 436 Pa. Page 127]

    highly unlikely, he could have requested the court to give a cautionary instruction. Having failed to do so, he has no legitimate complaint about the admission of this evidence, clearly relevant to explain the prior inconsistent statement.

Another allegation of error in the admission of evidence concerns the testimony of police officer Lupo. Officer Lupo testified that in the early morning (approximately 1:45 A.M.) of April 27, 1967, shortly before the hour at which the murder was committed, he saw not far from the scene of the murder an automobile containing four persons, one white and three black, two of whom he could identify as Stanyard and Collins. Appellant urges that this testimony was irrelevant and thus inadmissible because Officer Lupo could not identify him. We do not agree. The prosecution's theory was that the four boys remained together throughout the evening's escapades; the defense's story was that Carr had separated from the others. Officer Lupo's ...


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