Appeals from judgment of sentence and order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, Nos. 1054 and 1055, in case of Commonwealth of Pennsylvania v. Major McFadden.
Howard E. Davidson, with him Astor & Weiss, for appellant.
David R. Scott, 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, C. J. Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones dissents to the order reversing the judgment imposed on the manslaughter conviction and is of the view the evidence to sustain this conviction was sufficient. Mr. Justice Pomeroy took no part in the consideration or decision of this case.
The appellant, Major McFadden, was convicted by a jury of voluntary manslaughter and accessory after the fact to murder. Subsequently, motions in arrest of judgment or for a new trial were denied, and a prison sentence of 1 1/2 to 10 years was imposed on the manslaughter conviction. Sentence was suspended on the accessory after the fact conviction. These appeals followed.
The only question requiring discussion is whether the trial evidence was sufficient to sustain either or both convictions as a matter of law.
Reading the record in a light most favorable to the Commonwealth, as we are required to do (Commonwealth v. Bartlett, 446 Pa. 392, 288 A.2d 796 (1972)), these are the facts established at trial.
On the afternoon of September 15, 1970, Robert L. Washington tried to stab his wife, Sophie Washington, during a quarrel and she then went to her parent's residence at 2322 North Hope Street in Philadelphia accompanied by their two children.
About 9 p.m., that same evening, an automobile similar to one owned by the appellant, McFadden, was seen passing by the Hope Street address at a slow speed, and after circling the block stopped for two or three minutes on Hope Street in a parking space located about one block to the north. It was then observed that McFadden was seated behind the wheel of the vehicle, an unidentified female was seated beside him and Robert L. Washington, a close friend and companion of McFadden, was seated in the rear. McFadden and the female exited from the vehicle "and went to the back of the car and near the trunk."*fn1 The two then re-entered the automobile and it proceeded to circle
the block once again before parking at the corner of Hope and Dauphin Streets about 155 feet south of 2322 North Hope Street.
Very shortly thereafter, Washington was seen walking north on North Hope Street from the direction of the McFadden automobile. Sophie Washington, her parents and her brother, Russell Green, were sitting on the front steps of the parents' home. When Washington arrived in front of the house, he pulled a rifle from underneath a shirt he was carrying over his arm, and aimed the rifle at his wife. She ran behind a truck parked in front of the house. When Russell Green attempted to intervene, Washington turned the gun in his direction and fatally shot him. He then fired two additional shots in the direction of his wife and she ran into the house. Washington followed and a struggle ensued between the two for possession of the gun. When he gained the ...