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COMMONWEALTH v. JENKINS (05/17/71)

decided: May 17, 1971.

COMMONWEALTH
v.
JENKINS, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1969, No. 648, in case of Commonwealth of Pennsylvania v. Jerome T. Jenkins.

COUNSEL

Henry B. Fitzpatrick, Jr., with him D. M. Masciantonio, for appellant.

Milton M. Stein, Assistant District Attorney, with him 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.

Author: O'brien

[ 442 Pa. Page 589]

On March 2, 1969, about a dozen people, all friends, were gathered at the home of one of their number for cards and conversation. One of the twelve, the appellant,

[ 442 Pa. Page 590]

    twenty-seven year old Jerome Jenkins, woke up from a nap and went into the kitchen to talk with his lifelong friend, Henry Jefferson, and the others gathered in that room. They were having a friendly conversation, "joking around," and laughing. Suddenly appellant took a gun from his pocket and pointed it around the room. Some of the people there, remembering that a gun was no joking matter, told the appellant that he shouldn't be pointing a gun like that. The appellant confidently explained that the gun wasn't loaded. As is so often the case when people play with guns, the appellant was wrong. He pulled the trigger and the gun clicked. Then he did it again. This time the "empty" gun shot Henry Jefferson in the stomach. As Jefferson fell, the appellant exclaimed "Oh, my God, I shot the man." Jefferson was rushed to the hospital, with the appellant accompanying him. At the hospital appellant was arrested for the shooting but was released on bail. On March 24, 1969, Jefferson died. Appellant, who was visiting him at the hospital, was rearrested and indicted for murder and voluntary manslaughter as well as involuntary manslaughter. A trial held before a judge and jury on September 18, 1969, resulted in a verdict of guilty of voluntary manslaughter and a sentence of three to twelve years at a state correctional institution followed denial of his post-trial motions.

On appeal appellant alleges six errors were committed which deprived him of a fair trial. Three concern the admission into evidence of a subsequent arrest of appellant on May 11, 1969, more than two months after the fatal shooting. The facts surrounding this issue are as follows:

On May 11, 1969, appellant was in a house in the same block as the house where the shooting occurred. In the midst of drinking wine with a group of men, he "started fooling around with a gun." A bystander,

[ 442 Pa. Page 591]

Charles Cornish, testified for the Commonwealth to the effect that after the appellant put the gun in his pocket, returned to his wine, and finally dozed off, Cornish "slipped across the street" and called the police. The Commonwealth then placed a succession of four policemen on the stand to recount how they put on their bulletproof vests, drew their guns and invaded the house where appellant, three of his friends, his gun and his wine were located. The police witnesses further recounted how they placed all four men in a wall-search position, searched each of them and discovered a fully-loaded .22 caliber revolver and 46 rounds of ammunition on the appellant. Appellant was arrested for carrying a concealed weapon. The weapon was the same one used to shoot Jefferson.

Appellant argues that the evidence should not have been admitted under the general rule outlined in Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955), where we said: "It is true, of course, that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime, because ...


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