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COMMONWEALTH v. JENNINGS (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
JENNINGS, APPELLANT



Appeal from judgment of Court of Common Pleas of Washington County, Sept. T., 1969, No. 90, in case of Commonwealth of Pennsylvania v. Norvelle DeWitt Jennings.

COUNSEL

Arnold W. Hirsch, for appellant.

Paul M. Petro, Assistant District Attorney, with him John F. Bell, First Assistant District Attorney, and Jess D. Costa, District Attorney, for Commonwealth, appellee.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: Eagen

[ 446 Pa. Page 297]

In the early morning hours of July 27, 1969, the office of an organization providing emergency ambulance service in Washington, Pennsylvania, received a phone call from an anonymous person saying F. K. Fawcett had been injured in a fall and requesting that an ambulance be dispatched to his residence. Mr. Fawcett was an elderly gentleman who lived alone in a house in East Washington which was secluded from other residences in the area.

When the ambulance attendants arrived at the Fawcett residence, they discovered the house had been broken into. They also found Mr. Fawcett dead in a bedroom on the second floor. He was bound and gagged and bore physical marks of a brutal assault. The entire house was in serious disarray indicating it had been ransacked.

[ 446 Pa. Page 298]

In response to phone calls, police officers and a physician arrived on the scene within minutes. An examination of Mr. Fawcett's body disclosed the existence of multiple bruises on the arms, face and head. A subsequent medical examination established that one such wound penetrated the deeper tissues of the scalp rupturing blood vessels between the thin and heavy covering of the brain resulting in a hemorrhage which caused death.

On August 19, 1969, Sean W. Naser was taken into police custody and subsequently admitted having participated in a burglary of the Fawcett residence on the night of July 26th, together with Norvelle DeWitt Jennings, John Allen Banks and Charles Avery. He also gave the police information indicating Jennings and Banks had assaulted Mr. Fawcett during the perpetration of the burglary.*fn1 As a result, all four individuals were arrested and indicted for burglary, larceny, conspiracy and murder.

Banks was the first to be tried on the charge of murder and was found guilty by the jury of murder in the second degree. The Commonwealth's case against Banks depended almost completely on the testimony of Naser who testified as a Commonwealth witness.

Jennings was tried next and was found guilty by the jury of murder in the first degree with the punishment fixed at life imprisonment. In this instance, Avery joined Naser as a Commonwealth witness against Jennings. The Commonwealth's case was further strengthened by the testimony of a witness who heard Jennings admit involvement in the Fawcett burglary while a prisoner in jail awaiting trial.

Subsequently, both Avery and Naser entered general pleas of guilty to murder indictments. The former was

[ 446 Pa. Page 299]

    adjudged guilty by the court of murder in the second degree, and Naser was adjudged guilty of voluntary manslaughter.

Banks and Jennings both filed appeals in this Court from the judgments of sentence attacking the validity of their convictions. This opinion concerns only the Jennings appeal.

From the evidence at trial, the jury was warranted in finding the following facts:

About 9:30 p.m., on July 26, 1969, Naser, Banks, Jennings and Avery joined together and traveled in Naser's automobile to the Fawcett residence with the intention of burglarizing it. As they approached the house, they observed a light was lit in one of the rooms on the second floor. A rear door was forced open, and Jennings, accompanied by Banks, entered the house, while Naser and Avery remained on the outside as "lookouts". Jennings and Banks ascended to the second floor, forcibly overpowered Fawcett and struck him many blows to the head and body with their fists. They placed a gag in his mouth, bound his ankles and tied his hands behind his back. They then ransacked the house, took certain property belonging to Fawcett, rejoined Naser and Avery and fled from the scene.

The sufficiency of the evidence to sustain a verdict of guilty of murder in the first degree is not questioned, but it is urged a new trial is required because of prejudicial error during the prosecution proceedings. The trial was of extended duration and many assignments of error are asserted. After studying the record and each alleged error, we conclude the judgment should be affirmed.

It is argued due process was violated in that Jenings "was not tried by a jury of his peers" because "the jury was not properly selected" and ...


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