Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1968, No. 453, in case of Commonwealth v. Robert Commander.
Joseph Michael Smith, for appellant.
James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts concurs in the result.
The defendant, Robert Commander, was indicted for murder and voluntary manslaughter, and, on another indictment, for involuntary manslaughter. The district attorney elected to try defendant only on the murder indictment. Defendant, while represented by counsel, waived a jury trial after the district attorney certified that defendant's possible guilt would not rise
higher than murder in the second degree. While this was not binding on the Court -- Com. ex rel. Hobbs v. Russell, 420 Pa. 1, 215 A.2d 858; Com. ex rel. Ward v. Russell, 419 Pa. 240, 213 A.2d 628; Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733; Com. ex rel. Johnson v. Rundle, 411 Pa. 497, 192 A.2d 381 -- the trial Judge found defendant guilty of murder in the second degree, denied his motions for a new trial and for arrest of judgment, and imposed a sentence of from three to ten years' imprisonment. From this judgment of sentence, defendant took this appeal.
On May 10, 1968, at about 10 P.M., defendant, accompanied by James Barcley and an unnamed woman, entered a taproom in Philadelphia known as the Carolina Bar. Defendant was engaged in a conversation with the woman when Alton Page, the deceased, came over and slapped the woman on her buttocks. Page and defendant started arguing over Page's action and a fight broke out between them. After the bartender asked them to leave, they continued their fist fight on the sidewalk in front of the barroom. After the fight was broken up by the patrons of the bar, Page announced that he was going home to get a "shiv," which witnesses testified was a slang term for a knife. Barcley, who was in the barroom during the fight, testified that he did not see a weapon on the person of either man.
Page and his common-law wife, Thelma Page, then returned to their home, but only remained there for about ten or fifteen minutes. They then left for the 918 Bar, which is two blocks from the Carolina Bar. When they arrived at the 918 Bar, Page ordered a couple of beers and Mrs. Page went to the ladies' room. Page was seated on the first stool at the bar with his back to the door, drinking a bottle of beer, when defendant appeared at the door.
According to the evidence, when defendant appeared at the door, Page made a motion "like he was going to
his sweater" and within a few seconds, defendant, while standing only five feet away from Page, fired the fatal shot into a vital part of Page's body. There is conflicting testimony as to whether Page actually pulled out a knife, either when defendant appeared at the door or when he put his hand in or near his sweater. John Carroll, who was seated a couple of bar stools from Page, testified that he saw defendant enter the bar and Page reach under his sweater, but he did not see him pull out a knife. Barcley, an eyewitness to the fight at the Carolina Bar, testified that he went to the 918 Bar only after the shooting, and therefore did not see the killing. William Christine, a professional investigator who was appointed by the Court for the defendant, testified that he interviewed both Carroll and Barcley prior to the trial, and both told him that they had seen Page pull ...