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COMMONWEALTH v. FAIRBANKS (07/02/73)

decided: July 2, 1973.

COMMONWEALTH
v.
FAIRBANKS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1970, No. 44, in case of Commonwealth of Pennsylvania v. Robert Fairbanks.

COUNSEL

H. L. Anderson, with him Anthony D. Pirillo, Jr., for appellant.

Romer Holleran, 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, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Chief Justice Jones and Mr. Justice Nix concur in the result. Mr. Justice Pomeroy took no part in the consideration or decision of this case.

Author: Manderino

[ 453 Pa. Page 91]

The appellant, Robert Fairbanks, was convicted of murder in the second degree on October 21, 1970. Post-trial motions were denied and the appellant was sentenced to serve nine to eighteen years' imprisonment. This appeal followed. The judgment of sentence is reversed and a new trial granted because the prosecutor introduced hearsay evidence which was highly prejudicial and may have been most significant in the jury's deliberations and their consideration of the appellant's guilt or innocence. The hearsay evidence was first mentioned in the prosecutor's opening statement. References to that evidence continued throughout the trial, including references in the prosecutor's closing argument. Immediately upon discovering that the highly prejudicial evidence was based on hearsay, defense counsel objected but was overruled by the trial court. His motions for a mistrial were also denied. The hearsay evidence was highly significant in supplying a motive, without which, there would have been a significant gap in the prosecution's theory of the killing.

The prosecution and the defense agreed on many facts. During the early morning of April 5, 1970, after

[ 453 Pa. Page 92]

    the normal closing hour of taverns, a party was in progress at an apartment located on the first floor at 2518 Federal Street in Philadelphia. Walter and Josephine Hudgins were hosting a party at which at least fifteen (perhaps thirty) people were present. Nathaniel Swint was in attendance at the party for awhile and then left. Before his departure, an argument took place between him and the appellant. It began when Nathaniel Swint made a remark about holding somebody up.

Some time later, Nathaniel Swint returned to the apartment with his brother, Robert Swint. They were admitted to the apartment. Almost immediately gunfire broke out. Robert Swint was killed and Nathaniel Swint and Walter Hudgins were wounded. The prosecution and the defense differed sharply as to what precipitated the gunfire.

The prosecution claimed that Nathaniel Swint had initially gone to the party to collect $700, which Walter Hudgins owed him for cocaine. Nathaniel Swint admitted that he made a remark at the party about holding somebody up which precipitated the argument with the appellant. He testified, however, that his remark was made in jest and that he was surprised when the appellant and others took him seriously. He also testified that during the argument the appellant pulled out a .38 revolver but nothing happened. Walter Hudgins, who had been upstairs during the argument, then came down, walked with Nathaniel Swint outside the apartment, and told him to return later for the $700. Nathaniel Swint said that he met his brother, Robert Swint, thereafter, and they both returned to the apartment in order to collect the $700. They were admitted to the apartment and walked through the hallway leading to the dining room. As Robert Swint, who was in the lead, reached the dining room, he was shot several

[ 453 Pa. Page 93]

    times without warning and fell to the dining room floor. Nathaniel Swint was also shot, but managed to crawl outside.

The defense version is entirely different. According to defense witnesses, when Nathaniel Swint was first at the party, he told several people he needed money badly and asked for assistance. He also made belligerent and aggressive remarks to some of the people at the party. He mentioned, at one point, a stick-up and at another point told a woman that he would shoot her man if he saw him. He then made a remark to a man at the party, who was counting money, that he would hold him up, if he weren't in so much trouble already. Nathaniel Swint had been convicted of second degree murder, arising out of a totally unrelated incident, and had been released on bail ten days prior to the morning of the party. He had not yet been sentenced. Defense witnesses agreed that an argument occurred after Nathaniel Swint's remarks about a holdup, but denied seeing the appellant pull out any gun. They agreed that Nathaniel Swint left the party shortly thereafter.

According to defense witnesses, when Nathaniel Swint returned with his brother, Robert Swint, they heard the doorbell and Walter Hudgins went to answer the door. Almost simultaneously gunfire began. Walter Hudgins was wounded along with Nathaniel Swint, and Robert Swint was killed. According to the defense version, the appellant shot Robert Swint and Nathaniel Swint in self-defense because they had returned to the apartment with guns and began shooting.

The prosecution and the defense thus sharply differed on what happened immediately before the shooting began and who initiated the shooting. In order for the jury to have accepted the prosecution's version, it was important for the prosecution to provide evidence

[ 453 Pa. Page 94]

    to explain the appellant's shooting at Robert and Nathaniel Swint when they ...


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