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COMMONWEALTH v. CLARK (11/26/73)

decided: November 26, 1973.

COMMONWEALTH
v.
CLARK, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1968, No. 1952, in case of Commonwealth of Pennsylvania v. Phillip Clark.

COUNSEL

F. Emmett Fitzpatrick, Jr., with him Joseph Michael Smith, and Fitzpatrick & Smith, for appellant.

Maxine J. Stotland, Assistant District Attorney, with her 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.

Author: Pomeroy

[ 454 Pa. Page 331]

On July 15, 1968, Officer Ross Brackett of the Philadelphia Police Department was shot to death when he pursued and attempted to arrest a suspect fleeing from the robbery of a Philadelphia trolley car. Appellant, Phillip Clark, was tried for this offense and found guilty of murder in the first degree. Following the denial of post-trial motions, Clark was sentenced to life imprisonment. This direct appeal followed.

Appellant urges three grounds for reversal. 1. insufficient evidence for conviction; 2. the improper introduction into evidence of an incriminating statement given by appellant to the police; 3. numerous prejudicial references during the trial to police photographs of Clark. For the reasons given below we find that these contentions lack merit. We consider them in the order presented by appellant.

1. The test of sufficiency of evidence is whether, accepting as true all the evidence, together with all reasonable inferences therefrom, upon which the jury could properly have based its verdict, such evidence and inferences are sufficent in law to prove guilt beyond a reasonable doubt. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1971); Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968); Commonwealth v. Whiting, 409 Pa. 492, 187 A.2d 563 (1963). The Commonwealth presented some 45 witnesses and 38 exhibits during the course of the twelve day trial.*fn1 Through this evidence, the circumstances of the robbery and subsequent killing of Officer Brackett appeared as follows: At 8:30 a.m. on July 15, 1968, a trolley car stopped at an intersection in Philadelphia and was approached by a man in a blue shirt and light-colored

[ 454 Pa. Page 332]

    hat. The man reached through the operator's window and grabbed some $59 in rolled up change that was stored on the dashboard. The man fled and the conductor of the trolley (who later identified appellant as the thief) gave chase. A short distance down the street, the trolley operator spotted a police car, hailed it, and told the occupants what had happened. The policemen radioed to headquarters the occurrence of the robbery and a description of the thief, and set off in the direction taken by the robber. Some two blocks away, Officers Brackett and Hall were cruising in another police vehicle when they heard the flash message about the robbery. Shortly thereafter, they spotted a running man fitting the description of the thief and pursued him in their police wagon. During this time, the man was observed by a witness to throw a bundle (later found to contain money) into the street, which was quickly picked up by some small boys. The running man then darted into an alley and Officer Brackett took up the chase on foot, his partner meanwhile driving around the block to come into the alley from another direction. Brackett caught up with the suspected thief (identified as Clark by two witnesses) and attempted to handcuff him, but he broke away, taking Brackett's gun with him. The officer then followed Clark around a corner and was met by five shots from his own gun, the last one striking Brackett in the head, killing him instantly.

Clark was identified by photographs as the policeman's assailant by two witnesses on the same day as the killing. Brackett's revolver was later found in bushes near Clark's residence. Upon apprehension some four days after the crime, appellant admitted taking the money from the trolley car and throwing it into the street while running, but said nothing as to the shooting of Officer Brackett.

[ 454 Pa. Page 333]

Appellant asserts that the above evidence of the Commonwealth does not rule out the possibility that the death of the policeman was a "pure accident" and that the identification testimony was "suspect". Both of these assertions fly in the face of an extensive record which details the two crimes and squarely implicates the appellant. The fact that some witnesses who had identified Clark a year and a half previously were unable to do so at trial, and that others who did identify him at trial might have been influenced by the appearance of Clark's photograph in the newspapers following the crime, does not mean that the jury must disregard this testimony; these were matters going to the weight of the evidence. The jury could have found the earlier identifications reliable and that the published photographs did not influence the other witnesses. Indeed, two identification witnesses had known Clark ...


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