Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1969, No. 1680, in case of Commonwealth of Pennsylvania v. Arthur Crawford.
Frank M. Jackson, with him John David Egnal, for appellant.
Edward G. Rendell, Assistant District Attorney, with him Milton M. Stein, Assistant 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 Pomeroy. Mr. Justice Eagen concurs in the result. Concurring Opinion by Mr. Justice Nix. Mr. Chief Justice Jones and Mr. Justice Roberts join in this concurring opinion.
Arthur Crawford, the appellant, was convicted by a jury in Philadelphia of second degree murder and conspiracy to commit murder and was sentenced to a term of ten-to-twenty years' imprisonment. Following denial of post-trial motions, appellant brought this direct appeal. We will reverse and remand for a new trial.
It is necessary to discuss only one of appellant's three allegations of error.*fn1 The victim of the crime, Jesse Fisher, a fifteen-year old boy, was beaten and shot to death on August 12, 1969 by a number of youths, members of a rival street gang, as he slept on a step near the intersection of 15th and Clymer Streets in Philadelphia. Arthur Crawford was arrested and (along with others) charged with the crime after he gave an inculpatory statement to police authorities. The voluntariness of that statement was disputed at trial and appellant, corroborated by members of his family, testified that he had been at home at the time of the shooting.
One of the Commonwealth's witnesses was a fellow gang member of the defendant, one Ernest Downing, who testified at trial that he had overheard a conversation
between two other members of the gang, Paul Geiger and Walter Westbrook: "Paul Geiger and Walter Westbrook were talking about going over to 15th Street and move on somebody. Paul Geiger, I called him, Taboo, he was saying, 'you all going over?' He was talking to all the guys around there." In its charge to the jury, the trial judge summarized the above quoted evidence as follows:
"Ernest Downing said that this defendant was present and you will recall that he testified what he said; the defendant said, 'let's go over and get them.' And they all went over and fifteen of them or so went across Broad Street."
The court then related how after further verbal assaults directed to the victim by the gang, the defendant, according to Downing, "pulled out his gun and shot the deceased several times". The court then charged: "That testimony alone, if you believe the testimony of Ernest Downing, will be sufficient to convict the defendant of one of the degrees of murder." At the conclusion of the charge defense counsel objected to and moved to strike the above quoted portion of the charge erroneously attributing to appellant the words of Geiger on the ground that it had defendant uttering damning words which no witness had placed in his mouth. The trial judge declined on the ground that he had frequently in his charge explained to the jurors that it was their ...