Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1971, No. 35, in case of Commonwealth of Pennsylvania v. James Arnold Bayard.
Henry J. Lunardi, for appellant.
J. Bruce McKissock, 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 Nix. Mr. Justice Roberts concurs in the result.
The appellant, James Bayard, was charged with the murder of one Heburn DuBose and, after a trial before a judge and jury, he was convicted of murder in the second degree. Appellant's post-trial motions were denied and he was sentenced to serve a prison term of eight to twenty years. This direct appeal follows.
Appellant now asserts that the Commonwealth's evidence was insufficient to support a verdict of second
degree murder. A reading of the record discloses the following facts: On June 20, 1971, the appellant and two friends, John Lark and William Starks, attended a carnival on the northeast corner of Twentieth Street and Girard Avenue in Philadelphia. At approximately 7:00 p.m., a heated quarrel developed between appellant and one Phillip Hudson, and the two determined to leave the carnival to fight in a small alley nearby. Hudson had been a member of a "gang" whose "turf" included the street corner in question, and appellant and his friends had been associated with a group from South Philadelphia. As the two left the carnival, each was accompanied by his respective friends.
The evidence is sharply conflicting at this point. Hudson testified for the Commonwealth that the group crossed to the west side of Twentieth Street and proceeded south to a car which was later identified as belonging to Lark. Lark then reached in an open window of the car on the driver's side, took out a pistol, and handed it to Bayard. Bayard went through the motions of loading the pistol and crossed to the east side of Twentieth Street, accompanied by Starks. Bayard and Starks confronted the victim, DuBose, who was identified as a member of the gang to which Hudson belonged, and after talking for several seconds, Bayard pulled the pistol from his pocket and fired at DuBose. Bayard and Starks then fled south on Twentieth Street.
The appellant took the stand in his own defense and admitted that he and Hudson had argued and that they had decided to leave the carnival to engage in a fist fight. From this point on his story differs materially from Hudson's. He stated that, as he and his friends approached Lark's car, members of Hudson's gang appeared from two directions carrying bottles, bricks and sticks, and crowded around them. Lark reached into the car and gave appellant a gun and
appellant attempted to make his way to the passenger's side of the car. The crowd refused to permit him to do so however, and appellant was backed across the street. Appellant maintained ...