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COMMONWEALTH v. GWYN (01/25/71)

decided: January 25, 1971.

COMMONWEALTH
v.
GWYN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, Sept. T., 1967, No. 26, in case of Commonwealth of Pennsylvania v. Hilery Randolph Gwyn.

COUNSEL

Robert E. Yetter, with him Bruce D. Desfor, and Metzger, Wickersham, Knauss & Erb, and Meyers & Desfor, for appellant.

Jerome T. Foerster, Assistant District Attorney, with him LeRoy S. Zimmerman, 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. Mr. Justice Cohen took no part in the decision of this case.

Author: Bell

[ 441 Pa. Page 547]

Appellant was indicted and tried for the murder of his brother, Daniel Gwyn, on September 23, 1967. After a quarrel, defendant pulled out a knife, stabbed his brother and killed him. The jury found the appellant guilty of murder in the first degree and fixed the penalty at life imprisonment.

After the lower Court denied defendant's motions for a new trial and for arrest of judgment, the defendant

[ 441 Pa. Page 548]

    took the present appeal from the judgment of sentence.

Appellant makes five contentions: (1) prejudicial error in denying the motion for withdrawal of a juror; (2) the Court's charge on reasonable doubt constituted basic error; (3) he was sufficiently intoxicated to reduce the killing to murder in the second degree; and (4-5) that adequate legal provocation existed to reduce the killing to voluntary manslaughter and/or self-defense.

During the course of the trial, the Commonwealth called Barbara Burnett as a witness and during her direct examination she testified (in an unsolicited response) that the appellant said to her, "I killed my cousin." Appellant's counsel moved for withdrawal of a juror and although this motion was denied, the trial Judge specifically instructed the jury that this statement was to be completely disregarded.

Appellant contends that the unsolicited statement attributed to him by Barbara Burnett was so prejudicial that it was error to refuse to withdraw a juror. We disagree.

Appellant bases his assertion that the lower Court erred in refusing to withdraw a juror on Commonwealth v. Gibson, 275 Pa. 338, 119 Atl. 403. In Gibson, this Court reversed the lower Court verdict because the district attorney attempted to introduce into evidence another unconnected crime for which the defendant had been convicted. The Gibson case is clearly distinguishable from the present case, because in Gibson, the district attorney specifically asked the witness, "Q. Was that after he had been convicted of shooting your brother?" In the present case, the statement made by Barbara ...


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