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COMMONWEALTH v. ALLEN (04/22/71)

decided: April 22, 1971.

COMMONWEALTH
v.
ALLEN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1970, No. 844, in case of Commonwealth of Pennsylvania v. George Allen.

COUNSEL

Stephen Israel, with him Fine, Perlow, Stone & Cohen, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Eagen, O'Brien, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones and Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Bell

[ 443 Pa. Page 17]

Appellant George Allen was indicted for murder and voluntary manslaughter as a result of a stabbing death in Pittsburgh. On April 22, 1970, the jury found the appellant guilty of murder in the second degree. Timely motions for a new trial were filed, and after argument before the Court en banc, these motions were denied. Appellant was sentenced to from four to twelve years in prison and from the judgment of sentence, this appeal was taken. In all the aforesaid proceedings, appellant was represented by counsel.

The factual background which led to the stabbing is conflicting and somewhat confusing. Joseph A. Parker testified for the Commonwealth and, as might be expected, his version of the killing was decidedly different from the versions of appellant and Miss Grayson. Parker testified that he had been drinking on and off with Wilson (the deceased victim) all afternoon and into the night of January 6, 1970. At approximately 9:30 P.M., Wilson offered Parker a ride home and they left the Senate Cafe. As they walked toward the corner of Pride Street and Our Way, Parker noticed a car parked on Our Way with a girl in the back seat. When Wilson was three or four feet from the car, the appellant appeared and accused him of stealing his car. Parker saw the appellant stab the deceased, but he could not see whether the deceased swung at the appellant. Appellant then turned to Parker and said something, and Parker ran down the street with appellant in pursuit.

According to the testimony given by appellant, he took Miss Gladys Grayson to the Senate Cafe for a few drinks at approximately 6:30 P.M. on January 6,

[ 443 Pa. Page 181970]

. When they left the Senate Cafe at approximately 9:30 P.M., appellant's car was missing from its parking place. Appellant and Miss Grayson began walking towards the police station to report the theft. While on the way, Miss Grayson spotted the car as it traveled down a street called Our Way and parked on Pride Street. The driver got out of the car and began walking in the direction of the Senate Cafe. Appellant sent Miss Grayson to find a police officer while he proceeded to the car to await the return of the driver and place him under arrest. Appellant secured a dagger from the glove compartment of his car and crouched behind the car. When Wilson returned to the car, appellant confronted him and told him he was placing him under arrest for stealing his car. Wilson resisted and swung at appellant, and appellant stabbed him. Appellant then chased Parker, who had accompanied Wilson from the bar down the street, but Parker escaped. When appellant returned to the car, Wilson was not around. After looking unsuccessfully for Wilson, appellant stopped Lt. O'Brien to report the stabbing. Later, when appellant was escorting Miss Grayson home, they discovered Wilson's dead body on Stevenson Street and flagged down a canine unit to report this.

Miss Grayson's version of the events was quite similar to appellant's, but she was not sure where appellant had originally parked his car, and could not substantiate appellant's version of the stabbing because she was searching for a police officer when the stabbing occurred.

In this appeal, appellant makes three contentions in support of his motion for a new trial: (1) the reference to the Black Berets, which the district attorney made in his opening and closing speeches to the jury, was made solely to inflame the jury, and ...


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