Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1962, No. 2098, in case of Commonwealth of Pennsylvania v. Raymond Gambrell.
Drew Salaman, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Linda West Conley, Assistant District Attorney, with her James T. Ranney and Milton M. Stein, Assistant District Attorneys, 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. Chief Justice Jones.
On May 1, 1962, appellant, Raymond Gambrell, was convicted of second-degree murder following a trial in Philadelphia County before a judge sitting without a jury. After post-trial motions were denied, appellant was sentenced to a term of imprisonment of six to twelve years. An appeal was filed with this Court but discontinued on September 14, 1962. Appellant, on November 10, 1971, filed a petition pursuant to the Post Conviction Hearing Act,*fn* alleging, inter alia, denial of effective assistance of counsel and the right of appeal. After evidentiary hearings were held on December 7, 1971, and February 7, 1972, appellant was granted the right to appeal to this Court nunc pro tunc; his petition for post-conviction relief was otherwise denied.
The prosecution arose from the fatal shooting of Reginald O'Neal on December 22, 1961. At approximately 9:30 on that evening two groups of young men met at the corner of 32nd and Diamond Streets in Philadelphia. After some conversation appellant became involved in one of two friendly boxing matches, each including a member of the opposing group. The other boxing match did not remain friendly and bystanders from each group intervened to separate the participants.
According to the Commonwealth's evidence, appellant also intervened. Having taken his coat off to box, appellant asked another boy to hand it to him. When the boy refused appellant grabbed the coat, reached into a pocket and pulled out a gun. Appellant's first shot hit Harold Doman, the opposing group's entry in
the other match, in the neck. Appellant then whirled around and fired a shot at Charles Young, also a member of the opposing group. Young fell to the ground and the shot hit the deceased, Reginald O'Neal. Charles Elliott, Young's nephew, saw appellant fire at his uncle, picked up a board that was approximately four feet long and hit appellant. Elliott testified that he struck appellant because he thought appellant had killed his uncle and to prevent appellant from shooting anyone else. Appellant shot Elliott twice. Appellant and other defense witnesses testified that Elliott hit him with the board before any shots were fired.
At the close of testimony, defense counsel (appellant was represented by two attorneys), without consulting appellant, waived a closing argument. The trial judge, having determined that the issue was the credibility of the witnesses, concluded that appellant fired his gun before he was struck and found him guilty of second-degree murder.
Appellant contends that he was denied the effective assistance of counsel since his attorney, aware of the conflicting testimony, waived appellant's right of summation.
Initially, we note that this Court long ago recognized that the denial of the right of summation by counsel to a criminal jury was an abridgement of the accused's constitutional right to full representation by counsel. Stewart v. Commonwealth, 117 Pa. 378, 11 A. 370 (1887). This principle has been held equally applicable to non-jury trials. Commonwealth v. McNair, 208 Pa. Superior Ct. 369, 222 A.2d 599 (1966). The right to summation, however, may be waived. ...