Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1968, No. 1531, in case of Commonwealth of Pennsylvania v. Gerald Miller.
John P. Quinn, for appellant.
Joseph Grano, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy 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 Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen took no part in the decision of this case. Mr. Justice Roberts took no part in the consideration or decision of this case.
Appellant was found guilty of second-degree murder by a judge, sitting without a jury, and sentenced to a term of imprisonment of two to ten years. The evidence is undisputed that a fight between the appellant and the victim began shortly after 7:00 p.m. on July 4, 1968, in a bar on the corner of Columbia Avenue and
Sydenham Street, Philadelphia, and thence erupted into the street. It is furthermore undisputed that the victim died of stab wounds inflicted by the appellant.
The only eyewitness to testify for the Commonwealth was the decedent's brother, James Gaillard. He testified that he was standing on the north sidewalk of Columbia Avenue, about four doors from Smitty's Bar, when he saw his brother, Herbert, the decedent, and the appellant come out of the bar, grappling, with the appellant holding a knife. He said he saw the appellant strike his brother once with the knife, but his brother broke away and ran west up the middle of the street with the appellant in pursuit; that his brother ran to the south side of the street, slipped and fell, and on the south sidewalk near the curb was overtaken by the appellant, who then stabbed him repeatedly. His further testimony was that his brother was on his back, lying face up, with the appellant straddling his legs and striking downward.
The Commonwealth also offered evidence that the decedent suffered seven stab wounds in all, one critical, the other six superficial. The critical one was on the right side, seven inches above the hip bone, penetrating the thorax right to left, involving both vein and artery between the eighth and ninth ribs, and the right lung, diaphragm and liver.
The appellant's own testimony and that of three witnesses called by him as to events inside the bar was that the decedent pulled the knife on the appellant and a struggle ensued for possession of it. All three of appellant's witnesses testified that they left while the wrestling was still in progress. None of the three testified that he saw any serious wound being inflicted during the fighting in the bar. Only the appellant testified that the knife changed hands inside the bar, and that appellant inflicted any of the decedent's wounds
there. Even the appellant was unable to say whether any wound below the decedent's shoulders had been inflicted in the early, indoor, stage of the fight, but he did testify that decedent was still fighting in the middle of the street, that they dragged each other up off the ground to continue fighting, that they "tussled" all the way over to the opposite side of the street, and ...