Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1969, No. 21, in case of Commonwealth of Pennsylvania v. James Bailey, alias Thomas Morgan.
Anthony V. DeCello, with him DeCello, Bua & Manifesto, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy.
On September 19, 1969, at approximately 10 a.m., Mrs. Dorothy Robinson was shot and killed in the bedroom of her home at 5419 Columbo Street, Pittsburgh. James Bailey, the appellant, was indicted for murder and voluntary manslaughter. After a jury trial, appellant was found guilty of second degree murder. Posttrial
motions were denied, and appellant was sentenced to imprisonment for a period of ten to twenty years. This appeal followed.
Appellant asserts here, as he did below, error (1) in the refusal to allow both of appellant's lawyers to cross-examine the chief Commonwealth witness, (2) in the rejection of certain proferred evidence as irrelevant, and (3) in that part of the charge to the jury wherein it was stated that the evidence would not support a verdict of voluntary manslaughter. We conclude that the second and third points are well taken and that a new trial must be had. Our discussion will be in inverse order to the above listing.
The Commonwealth's evidence was largely supplied by Cleveland Robinson, a 72-year-old retired mill worker and the husband of the victim. His story was substantially as follows: Appellant, accompanied by one William Trautman, went to the Robinson home on the morning involved and gained entrance by telling Robinson that they were from the Internal Revenue Service. Once inside, they pulled guns, demanded money, and began to beat Robinson. Following the beating, they followed Robinson to his bedroom upstairs, where his semi-invalid wife was sitting on the bed. At this point Robinson reached under the mattress of the bed, ostensibly for money, but instead grabbed a .38 calibre revolver and shot the appellant in the shoulder. The appellant then jumped Robinson and a scuffle ensued during which a number of shots were fired. One of these bullets struck Mrs. Robinson in the chest, inflicting the wound from which she died. After wresting Robinson's revolver away from him, appellant followed Trautman from the room. Mr. Robinson, although seriously wounded, managed to get outside and summon the help of a neighbor, who called the police.
Reacting quickly to the alarm, the police spotted appellant a few blocks away from the Robinson residence
and caught him after a chase. Two weapons, a .38 calibre revolver and a 7.62 millimeter Jeco revolver, were found on the person of appellant. A bullet from the Jeco revolver was found inside Mrs. Robinson's nightgown, ...