Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1968, Nos. 1585, 1586 and 1587, in case of Commonwealth of Pennsylvania v. John Joseph McIntyre.
Marilyn J. Gelb, for appellant.
William P. Boland, 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, Pomeroy and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Justice Eagen concurs in the result. Mr. Justice Nix took no part in the consideration or decision of this case.
The appellant, John Joseph McIntyre, was convicted on February 27, 1970, following a jury trial, of first degree murder, aggravated robbery and burglary. Appellant received a life sentence for the first degree murder conviction and concurrent sentences of ten to twenty years for the aggravated robbery and burglary conviction. Appellant challenges (1) the sufficiency of the evidence, (2) the use of his confession, (3) the trial judge's failure to rule on the admissibility of appellant's confession and (4) the charge to the jury concerning the confession. The recital of facts that follow are taken from the record and could reasonably have been found by the jury.
During the morning of October 17, 1968, appellant participated, along with one, John Seeley, and one, Adolph Schwartz, in the burglary-robbery of the residence of Frank and Anna Washick, located at 9158 Verree Road in Philadelphia. Appellant's accomplices
entered the residence. Appellant stayed outside the home during the robbery. The Washicks along with their daughter, Mary Ann Washick, were at home. During the robbery Anna Washick was able to call the police from the den-library in the home without being detected. While the robbery was still in progress, two police cars pulled into the driveway of the Washick residence. The concern and movements of the robbers in the residence after seeing the cars in the driveway gave the Washicks the opportunity to go into the laundry room of the home and admit two of the arriving police officers. The other officers remained outside the home. One of the officers who had entered the home went through the door connecting the laundry room to the kitchen; the other officer remained in the laundry room with the Washick family. Immediately, two shots were heard and the officer who had gone into the kitchen crawled back into the laundry room area. His wounds were fatal. Approximately forty-five seconds later, additional shots were fired by officers who were outside the home. They were shooting at one of the robbers attempting to escape through the front door. This robber, John Seeley, was shot and killed by the police. Additional officers who had arrived in a third car after the original shooting, fired at one of the robbers who was seen looking out of the second-floor window.
Under the Commonwealth's theory, appellant was guilty of murder because one of his accomplices shot and killed the officer who entered the kitchen from the laundry room. Appellant first claims that the officer could have been shot and killed by someone other than one of his accomplices. The evidence viewed most favorable to the Commonwealth established that at the time the officer was shot in the kitchen, no one else was in the Washick home except appellant's two accomplices, the Washicks and the officer-partner of the slain officer. The Washicks and the officer-partner were
together in the laundry room. A strong inference was certainly permissible that the officer who was shot immediately after he entered the kitchen was shot by one of the appellant's accomplices. The evidence strongly indicated that it was appellant's accomplice, Seeley, who shot the officer in the kitchen. Seeley had a .38 caliber pistol and the other accomplice in the home had a .25 caliber pistol. Two shots had been fired from Seeley's .38 caliber pistol and two .38 caliber bullets were found lodged in the kitchen walls. A trace of blood was found on one of the bullets. There was no evidence that any policeman, at any time, fired a .38 caliber pistol into the kitchen. All of the shots fired by the police were at either an upstairs window or at the front door.
In spite of the above evidence, appellant points to certain weaknesses in the Commonwealth's case. None of these weaknesses were justification for taking away from the jury the issue as to whether one of the accomplices shot the officer. Appellant claims (1) there was no eyewitness in the kitchen, (2) the blood on one of the bullets found in the kitchen was not identified as that of the slain officer, (3) that it could not be determined from a neutron activation analysis whether accomplice Seeley had personally fired his gun, (4) that there was no conclusive ballistic evidence that the officer was killed by bullets from Seeley's .38 caliber pistol, (5) that there was no conclusive ballistic evidence that the two .38 caliber bullets found in the kitchen came from Seeley's gun and (6) that there was a discrepancy in the physical evidence in that the blood-stained bullet removed from the kitchen cabinet was found at ...