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COMMONWEALTH v. CROSBY (06/28/71)

decided: June 28, 1971.

COMMONWEALTH
v.
CROSBY, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1961, Nos. 420 and 421, in case of Commonwealth of Pennsylvania v. Albert Crosby.

COUNSEL

David H. Kubert, with him Julian E. Goldberg, for appellant.

Arthur K. Makadon, 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, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones, Mr. Justice Eagen, Mr. Justice Pomeroy, and Mr. Justice Barbieri concur in the result. Mr. Justice Roberts dissents.

Author: Bell

[ 444 Pa. Page 18]

Appellant Albert Crosby was indicted for the double murders of his estranged wife and Robert Cliett in

[ 444 Pa. Page 19]

April of 1961. In 1962, while represented by counsel, he pleaded guilty to both indictments charging him with these murders, and was adjudged guilty of murder in the first degree on each indictment and sentenced to life imprisonment. In 1963, appellant sought a writ of habeas corpus in the State Courts and, after a complete hearing, the relief sought was denied. On appeal, in which he was represented by counsel, we affirmed: Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 202 A.2d 299, cert. denied, 379 U.S. 976. Appellant next sought a writ of Federal habeas corpus. Again, the writ was denied: United States ex rel. Crosby v. Rundle, 275 F. Supp. 707 (E.D. Pa. 1967). However, on appeal, the Third Circuit Court reversed and entered an Order directing a new trial: United States ex rel. Crosby v. Rundle, 404 F. 2d 790 (3d Cir. 1968). Appellant, while represented by counsel, was then tried before a jury, which returned verdicts of first-degree murder and fixed the sentence at life imprisonment on both indictments. He thereupon took this appeal, in which he was represented by counsel.

On the morning of April 11, 1961, appellant was arraigned in Philadelphia on charges of aggravated assault and battery brought by his estranged wife, Georgia Crosby. Appellant, an auxiliary policeman, later that day went to his wife's apartment. He testified as follows with respect to what thereafter transpired: Upon entering the apartment, he discovered his wife having sexual relations in front of his children with Robert Cliett. He left the bedroom and walked into another room, where his wife soon joined him. When he told her that he would report her conduct to the Court, she shouted to Cliett, "Get him!" Cliett picked up a large wooden slat and charged toward appellant, who then fired the gun in Cliett's direction. Appellant was unable to remember anything after firing the first shot. His first recollection afterwards was that he had

[ 444 Pa. Page 20]

    a gun in his hand in an alley about one-half a block from his wife's apartment.

A Commonwealth witness who occupied the second-floor apartment above appellant's wife heard "three bangs," and in a matter of seconds heard "two more bangs." She then heard children scream and went downstairs, where she discovered the two slain bodies of Cliett and appellant's wife.

Appellant's defense for the killing of Cliett was that he acted in self-defense. His defense to the killing of his wife was that he "blacked out" after firing the first shot at Cliett, and hence could not have had the requisite ...


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