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COMMONWEALTH v. KENNEY (11/30/72)

decided: November 30, 1972.

COMMONWEALTH
v.
KENNEY, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1968, No. 2081, in case of Commonwealth of Pennsylvania v. George Kenney.

COUNSEL

Abraham J. Brem Levy, with him John F. X. Fenerty, for appellant.

Milton M. Stein, Assistant District Attorney, with him T. Michael Mather, 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, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy and Mr. Justice Manderino join in this dissenting opinion.

Author: Eagen

[ 449 Pa. Page 563]

This is an appeal from the judgment of sentence imposed by the court on the appellant, George Kenney,

[ 449 Pa. Page 564]

    following his conviction by a jury of murder in the first degree. Appellant was sentenced to life imprisonment as the jury directed.

The record discloses the following pertinent facts:

On May 4, 1968, the state liquor store on Torresdale Avenue in Philadelphia was robbed by one individual. During the course of the felony, one of the three clerks present in the store, John Bucykowski, was shot by the felon and shortly thereafter died as a result of a wound in the neck.

An investigation was undertaken which led to the apprehension of one Barry Marabel (for the factual background of the arrest of Marabel and his complicity in the crime, see Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971)). Marabel confessed on May 17th to being involved in the robbery-murder and implicated appellant as the individual who had committed the robbery and shot Bucykowski. Appellant was immediately arrested and gave a full confession to the crimes.

At trial the Commonwealth introduced the confession of appellant,*fn1 as well as the testimony of the following witnesses. Joseph E. McAnany, one of the clerks present during the robbery, was called and he recounted the events leading up to the fatal shooting. He unequivocally identified appellant as the individual who had committed the robbery-murder, and stated that shortly before 9:00 p.m. on the night in question appellant entered the store and demanded the proceeds from the day's sales, as well as the money which personally belonged to the store clerks. He testified that when ...


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