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COMMONWEALTH v. BIGHUM (07/02/73)

decided: July 2, 1973.

COMMONWEALTH
v.
BIGHUM, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Philadelphia, Trial Division, May T., 1968, No. 1225, in case of Commonwealth of Pennsylvania v. Hubert Bighum.

COUNSEL

Peter A. Galante, for appellant.

William J. Stevens, Assistant District Attorney, with him J. Bruce McKissock and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Eagen and Mr. Justice Manderino concur in the result. Mr. Chief Justice Jones took no part in the consideration or decision of this case.

Author: Nix

[ 452 Pa. Page 557]

In February of 1970, a jury found appellant guilty of first degree murder and fixed the penalty at death. After appellant's post-trial motions were denied, sentence was imposed and this direct appeal followed.

Appellant raises several objections. After careful consideration, we find them to be without merit and we now affirm, subject to the modification of the sentence which will be discussed infra.

The first assignment of error is the trial judge's refusal of a motion for binding instructions premised upon a lack of jurisdiction. The evidence showed that the incident giving rise to this prosecution began on the evening of September 12, 1967, on the parking lot of the United States Post Office located at Ninth and Chestnut Streets, Philadelphia. At approximately 10:55 p.m., the appellant confronted Mr. Huber, his supervisor at the Post Office, in an alleyway by the parking area. Appellant grabbed Mr. Huber and fired two shots at him. He then forced Mr. Huber into his car and drove to Eleventh and Cherry Streets, within the City of Philadelphia, where he again fired four or five shots at Mr. Huber. The victim was found unconscious and bleeding at the latter location and died a short time later at a nearby hospital.

Appellant asserts that, as a matter of law, the Commonwealth failed to show that the fatal wounds were inflicted within the City and County of Philadelphia; rather, he maintains that the situs of the fatal wounds was a United States Post Office, a Federal Government reservation, and therefore jurisdiction lies exclusively in the Federal Courts.*fn1 "Acts done outside

[ 452 Pa. Page 558]

    a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm. . . ." Strassheim v. Daily, 221 U.S. 280, 285 (1911). See also, Commonwealth v. Thomas, 410 Pa. 160, 167-8, 189 A.2d 255 (1963), cert. denied, 375 U.S. 856 (1963). The evidence presented at trial unquestionably established not only that death occurred in the City of Philadelphia*fn2 but more importantly that a number of the fatal wounds were in fact inflicted within the city limits.

Four witnesses who were present at the Ninth Street Post Office on the evening of September 12, 1967, testified that at about 11:00 p.m., they heard two noises that sounded like shots. In his pre-trial statement, appellant admitted that he drove Huber from the Post Office to Eleventh and Cherry Streets, where he proceeded to "empty the pistol into him". The Medical Examiner testified that he performed the autopsy on the decedent and found that the decedent had suffered a total of six bullet wounds about the head and neck. He testified further that four or five of these wounds were sufficient, individually, to cause death. Thus, even if both of the shots fired on Post Office grounds resulted in fatal wounds, the evidence is uncontradicted that at least two additional fatal wounds were inflicted after Huber was transported from the Post Office grounds. Since it was established that at least two of the fatal wounds were sustained within the territorial jurisdiction of Philadelphia while the victim was yet

[ 452 Pa. Page 559]

    alive, the court was justified in finding jurisdiction and dismissing the motion for binding instructions.

In a somewhat related argument, the appellant urges that the trial judge erred in failing to specifically instruct the jury on the law concerning jurisdiction. Jurisdiction is a legal issue and therefore is not normally a concern for the jury. However, in those infrequent cases where jurisdiction depends upon the resolution of disputed facts, it is within the province of the jury to resolve the issue under proper instructions, and failure to give such instructions may constitute reversible error. Commonwealth v. Mull, 316 Pa. 424, 175 A. 418 (1934). Where the facts underlying jurisdiction are not in dispute, the rule is as follows: "There is no duty on a trial judge to charge a jury upon law which has no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at the trial: Commonwealth v. Coleman, 402 Pa. 238, 166 A.2d 525 (1961)." Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963).

From our discussion of appellant's point concerning binding instructions, it is apparent that the facts of this case are such that no reasonable man could fail to find that jurisdiction vested in Pennsylvania and that venue was properly within the Court of Common Pleas of Philadelphia County. The appellant's reliance upon Commonwealth v. Mull, ...


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