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COMMONWEALTH v. CARTER (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
CARTER, APPELLANT



Appeal from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1968, Nos. 1591 and 1592, in case of Commonwealth of Pennsylvania v. Monte Carwell Carter.

COUNSEL

Robert L. Franklin, with him Pechner, Sacks, Cantor & Dorfman, for appellant.

Stephen J. Margolin, 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. Justice Barbieri.

Author: Barbieri

[ 444 Pa. Page 407]

Appellant was tried by a judge and jury and found guilty of second degree murder under one bill and aggravated assault and battery under a second bill. After the entry of the verdicts, appellant filed motions for a new trial and in arrest of judgment. An en banc Court of Philadelphia Common Pleas judges denied these motions. Appellant was sentenced by the Court to a term of seven to twenty years' imprisonment on the second degree murder charge and received a suspended sentence on the aggravated assault and battery charge. This appeal followed.

At trial the Commonwealth introduced evidence which tended to prove the following facts. Appellant and at least five other members of a Philadelphia gang sought out a second gang to vindicate an attack made on one of their members. During the fracas which ensued, appellant stabbed repeatedly a youth named Keys, who later died, and also stabbed a second youth, Anderson, who was seriously wounded. Appellant was charged in one bill with the murder of Keys and was charged in the second bill, in three separate counts, with assault and battery with intent to kill, aggravated assault and battery, and assault and battery for the stabbing of Anderson.

Appellant makes four arguments on appeal: (1) that he is entitled to a retrial on the second bill because the jury rendered inconsistent verdicts in that it found appellant guilty of a count of aggravated assault and battery but found him not guilty on a separate count of assault and battery; (2) that both judgments should be reversed because of the introduction at trial of an illegally obtained confession; (3) that he is entitled to a retrial on both bills because the trial court failed to strike one of the jurors; and (4) that the evidence was insufficient to sustain the verdicts. We find these contentions

[ 444 Pa. Page 408]

    to be without merit and accordingly affirm as to both convictions.

Appellant argues in support of his first contention that the verdict of not guilty on the assault and battery count is logically inconsistent with a verdict of guilty on the aggravated assault and battery count since the former crime is a lesser included offense of the latter. This argument, however, is based on the mistaken assumption that the verdict of not guilty on the assault and battery count is to be interpreted as a finding by the jury that there was in fact no assault and battery. As the Superior Court said in Commonwealth v. Parrotto, 189 Pa. Superior Ct. 415, 422, 150 A.2d 396 (1959): "An acquittal cannot be interpreted as a specific finding in relation to some of the evidence. As in other cases of this kind, the Court looks upon this acquittal as no more than the jury's assumption of a power which they had no right to exercise, but to which they were disposed through lenity."

But even if it were assumed that the two verdicts were logically inconsistent, such inconsistency alone could not be grounds for a new trial or for reversal. "It has long been the rule in Pennsylvania and in the federal courts that consistency in a verdict in a criminal case is not necessary." Parrotto, supra, at 419. See also, United States v. Carbone, 378 F. 2d 420, 422 (2nd Cir. 1967); United States v. Cindrich, 241 F. 2d 54, 56-57 (3d Cir. 1957); Mills v. Commonwealth, 13 Pa. 633, 634-35 (1850); Commonwealth v. Kline, 107 Pa. Superior Ct. 594, 164 A. 124 (1933).

The Superior Court in the Kline and Parrotto decisions relied on the landmark case of Dunn v. United States, 284 U.S. 390 (1932). Writing for the Court, Mr. Justice Holmes said (at pages 393-94): "Consistency in the verdict is not necessary. . . . ...


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