Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1965, No. 638, in case of Commonwealth of Pennsylvania v. Boise Wright.
Henry J. Lunardi, with him Sadie T. M. Alexander, A. Charles Peruto, and Lorch, Ryan, Peruto & Vitullo, for appellant.
James D. Crawford, Deputy District Attorney, with him Brian E. Appel, 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. Justice O'Brien. Dissenting Opinion by Mr. Chief Justice Bell.
Appellant, Boise Wright, with two others, Marion Wilson and Robert McSwain, was charged with having murdered one Wakefield Conway, Jr., during an alleged robbery on a street in Philadelphia. The incident occurred on Christmas night, December 25, 1964. During the perpetration of the robbery, Conway was stabbed six times and was dead by the time police arrived shortly after the occurrence.
The incident was witnessed by four young persons, ranging in age from nine to fourteen, who were walking on the opposite side of the street when the attack occurred. They testified that: three youths surrounded the deceased; one of the three repeatedly stabbed the victim with a shiny-bladed knife; the victim fell to the ground; one of the three put his hands in the victim's pocket and placed one of his hands back into his own pocket; all three ran south and turned into an alley.
Two of the four eyewitnesses, eleven-year-old Emma Holiday, and her cousin, Cynthia Jackson, of the same age, unequivocally identified appellant as one of the three participants. The facts of the incident are set out at length in Commonwealth v. Wilson, 431 Pa. 21, 244 A.2d 734 (1968).
Appellant took the stand and testified that he did not participate in the robbery of Conway and that he was not present at the time of the stabbing. He stated that he, Robert McSwain and Marion Wilson were in the company of four other teenagers at the time in
question, Dorothy Wilson, her boyfriend, and the Guyton brothers. None of these witnesses was called by the defense.
Concerning the appellant's failure to produce any of his alibi witnesses, the trial judge, at the request of the Commonwealth, charged the jury as follows:
"I have been asked to discuss with you very briefly that there are other people who apparently were brought into the scene by the defendant as having been there with him or near him or in close proximity to where he was on the day that this occurrence took place. The name of Dorothy Wilson was brought out. The name of Nathaniel, her boyfriend, was introduced, as well as the two Guyton brothers. Dorothy Wilson was not called by the defendant to shed some light on what happened as far as the movements of the defendant are concerned on the day of the incident, nor was Nathaniel, who, the defendant said, was with Dorothy Wilson and he [sic] and Robert and Marion on the day of the occurrence. He was not ...