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decided: January 20, 1972.


Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1969, No. 1103, in case of Commonwealth of Pennsylvania v. James Glover.


James J. Binns, for appellant.

Romer Holleran, 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.

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

Author: Eagen

[ 446 Pa. Page 494]

The appellant, James Glover, was convicted by a jury of murder in the first degree and punishment was fixed at life imprisonment. Following the denial of post trial motions and imposition of sentence as the jury directed, this appeal was filed.

We have studied the record and are satisfied the evidence was adequate to sustain a finding of murder in the first degree. It was sufficient to establish that Glover, wielding a knife, broke into the second floor apartment of his estranged girl friend, Brenda McKinnon, while Andrew Robinson, Edward Milner and William

[ 446 Pa. Page 495]

Burton were present; that as the three guests attempted to flee the danger, Glover ran after them, caught Robinson near a window in the kitchen of the residence, stabbed him, and pushed him out of the window causing injury which resulted in Robinson's death. Glover attempted to excuse the stabbing by pleading self-defense at trial, but this defense failed as a matter of law, and undoubtedly failed to impress the jury, when Glover admitted during cross-examination that he stabbed Robinson as the latter was attempting to flee from him. Cf. Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970).

Appellant first complains he was denied a fair trial because of an outburst of laughter by spectator-police officers during the opening address to the jury by defense counsel. The record indicates that the incident complained of was not of serious proportion, and no prejudice resulted. Hence, the trial court did not abuse its discretion in refusing to award a new trial because of this uncalled-for conduct. See Commonwealth v. Garrison, 443 Pa. 220, 279 A.2d 750 (1971). Moreover, no motion for a mistrial was entered. Nonetheless, we wish to emphasize that it is the duty of the court to see that trial proceedings are conducted in an orderly manner and any disturbance or outbursts should be checked immediately by the court on its own motion. Misconduct on the part of a trial audience should never be tolerated and should immediately be suppressed in a manner as to impress upon the jury the impropriety and injustice of such conduct.

The next assignment of error challenges the admission of testimony at trial by Miss McKinnon as to an incident which occurred two or three weeks prior to the stabbing of Robinson. As to this, Miss McKinnon stated that Glover phoned her and asked that she meet him at the residence of a friend to discuss their child.

[ 446 Pa. Page 496]

Such a meeting was held, after which Glover followed the witness back to her apartment, against her wishes, and forced his way inside. An altercation developed between Glover and Edward Milner, who was present in the apartment at the time and came to the assistance of Miss McKinnon. Glover punched Milner in the mouth and threatened to secure a weapon "to kill this M. F." before being taken into custody by the police. This evidence was properly admitted to demonstrate the existence of ill feeling and motive on the part of Glover directed against Miss McKinnon and her friends. It is well settled that "[e]vidence to prove motive, or intent, or plan, or design, or ill will or malice is always admissible." Commonwealth v. Kravitz, 400 Pa. 198, 216 161 A.2d 861, 870 (1960), cert. denied, 365 U.S. 846, 81 S. Ct. 807 (1961). "Further, evidence of prior occurrences (e.g., previous threats) and prior offenses, if they are related to the offense for which the defendant is on trial, may be admitted to show malice, motive or intent." Commonwealth v. Faison, 437 Pa. 432, 446, 264 A.2d 394, 401 (1970).

An incident occurring about two or three weeks before the stabbing involved is clearly not too distant in time to be competent evidence of Glover's state of mind at the time of the killing. "The state of mind that will permit the admission of an unrelated crime is the state of mind at the time of the commission of the offense as shown by the acts or words of the defendant so close in time to the alleged offense as to have bearing upon his state of mind at that time." Commonwealth v. Boulden, 179 Pa. Superior Ct. 328, 341, 116 A.2d 867, 873 (1955).

While proof of ill will and prior acts of hostility in the context of a homicide usually demonstrate the state of mind of a defendant to the victim himself, under the ...

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