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COMMONWEALTH v. PIERCE (09/19/73)

decided: September 19, 1973.

COMMONWEALTH
v.
PIERCE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Delaware County, March T., 1971, Nos. 726 and 728, in case of Commonwealth of Pennsylvania v. James A. Pierce.

COUNSEL

R. Barclay Surrick, Assistant Public Defender, for appellant.

Philip J. O'Malley, Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Nix.

Author: Eagen

[ 453 Pa. Page 320]

James A. Pierce was convicted by a jury in Delaware County of the crimes of murder in the second degree and conspiracy. The convictions stemmed from the

[ 453 Pa. Page 321]

    fatal shooting of Emanuel Hughes in the City of Chester. Post-trial motions were denied and a prison sentence of six to fifteen years was imposed on the murder conviction. Sentence was suspended on the conspiracy conviction. Pierce now appeals.

Although, the sufficiency of the evidence is not challenged, the record demonstrates the jury was warranted in finding the following facts which amply support the verdict.

On the night of November 28, 1970, Pierce who was a member of a group known as the "Graveyard Gang" heard that members of another gang were coming to a dance to be conducted at the Ruth Bennett Housing Project in Chester. Anticipating trouble, he picked up two rifles at the home of his sister; one a single shot which he gave to a companion, James L. Dochery, and the other a repeating rifle which he kept himself. About 9:30 p.m., Pierce and Dochery saw five boys walking across a field and approaching the Ruth Bennett Project. Pierce first fired three shots from his rifle at some street lights and when the "five boys" turned and started to run away from the project, Pierce aimed the gun in their direction and fired "wildly" into the group. One of the group, Emanuel Hughes, age fifteen years, was hit in the abdomen by a bullet and fatally wounded.

Pierce contends several errors occurred at trial which require a retrial.

Initially, it is argued two of the jurors in the case took notes during the trial and used the notes during the jury's deliberation. The facts, as they relate to this issue, are these: Subsequent to trial, one of the jurors in the case contacted defense counsel and stated two jurors had taken notes during the trial and brought the notes into the jury room. Counsel had the juror sign an affidavit to this effect and presented ...


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