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COMMONWEALTH v. MOORE (06/28/71)

decided: June 28, 1971.

COMMONWEALTH
v.
MOORE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1968, Nos. 1502 to 1509, inclusive, in case of Commonwealth of Pennsylvania v. Nathaniel Moore.

COUNSEL

A. Martin Herring, with him Rudolph S. Pallastrone, for appellant.

James D. Crawford, Deputy District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts concurs in the result.

Author: Bell

[ 444 Pa. Page 25]

A jury found appellant, Nathaniel Moore, guilty of murder in the first degree and sentenced him to life imprisonment.

[ 444 Pa. Page 26]

Charles Tovsky, the deceased victim, was the proprietor of a grocery store in Philadelphia. At approximately 1:00 P.M. on January 3, 1968, he was robbed by two men, both armed with guns. During the robbery, decedent drew a gun from under the counter, but before he could use it was shot through the head by one of the robbers. He died shortly thereafter as the result of this wound.

The Commonwealth produced two eyewitnesses to the crime, but neither was able to identify appellant. Another Commonwealth witness testified that she had seen the appellant and his confederate receive guns from a man who had allegedly planned the robbery. She further testified that later that day she saw the three men together and the man alleged to have planned the robbery asked appellant what had gone wrong. However, this witness failed to connect this conversation directly to or with the robbery and murder of Tovsky.

In the last analysis, the conviction can be sustained only if defendant's confession was voluntarily, knowingly and intelligently made and was legally and Constitutionally admissible.

Pursuant to a Federal fugitive felon warrant,*fn1 four FBI agents went to the home of appellant's uncle in Pittsburgh, Pennsylvania. After announcing their purpose, appellant's uncle gave them permission to search his home. At this point, appellant's uncle told them that appellant was hiding in the basement. Two of the agents entered the basement, guns drawn, and told the appellant to come out. He did not, so the agents searched the basement and finally discovered appellant hiding under a sofa. The agents then searched and handcuffed appellant. They informed him that he was

[ 444 Pa. Page 27]

    being arrested for unlawful flight to avoid prosecution on a charge of murder, and proceeded to give ...


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