Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1972, Nos. 1377 to 1379, inclusive, in case of Commonwealth of Pennsylvania v. Tyrone Hail Sampson.
Charles Lowenthal, 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. Chief Justice Jones. Mr. Justice Roberts concurs in the result. Dissenting Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Nix.
At about 4:15 p.m. on September 14, 1969, Henry Stevenson (decedent), sixty-nine years of age, was found lying on the floor behind the counter in his grocery store, at 2801 North Ringgold Street in Philadelphia, suffering from numerous knife wounds; he died at the store at about 5:30 p.m. Appellant was subsequently arrested, on September 23, 1969, and indicted
for burglary, murder and aggravated robbery. On June 14, 1971, appellant was brought to trial and pleaded not guilty. The jury, on June 24, 1971, found appellant guilty of first-degree murder, burglary and aggravated robbery. Appellant's post-trial motions for a new trial and in arrest of judgment were argued before the court en banc on April 13, 1972, and denied in an opinion and order filed on July 3, 1972. Sentence was fixed at ten to twenty years on both the burglary and aggravated robbery charge to run concurrent with a sentence of life imprisonment for the murder charge. This appeal followed.
In a signed statement, which was admitted into evidence at trial, appellant described the incident that resulted in decedent's death, alleging that a friend named "Mingo" also participated. According to appellant, he was walking with "Mingo" at approximately 3:00 p.m., approaching the street where decedent's store was located, when "Mingo" said that he wanted some money and suggested that they go into decedent's store. Decedent unlocked the door and appellant and "Mingo" entered. "Mingo" pushed decedent as decedent was going behind the counter. Decedent then turned around, picked up a knife and started swinging. "Mingo" ran around to the other side of the counter. Appellant backed away and was cut on the left forearm by decedent. As appellant backed away he saw "Mingo" with a knife in his hand "charging" decedent. Appellant looked at his arm and then decedent hit the floor. Appellant did not see "Mingo" stab decedent. Appellant and "Mingo" left after searching the store for money. When they got outside "Mingo" gave appellant a paper bag full of change -- "Mingo" kept an envelope. Appellant bandaged the cut himself at his grandmother's house immediately after the incident.
The record further discloses that the left front pocket of decedent's pants was turned inside out and
cut and that his body was blood soaked. Four prosecution witnesses saw appellant on the afternoon of the killing: all four testified that his left arm was bandaged and three testified that he was wearing blood-spotted clothing. One witness stated that when he saw appellant, appellant was carrying a brown paper bag containing change. Appellant told one of the prosecution witnesses that he hurt his arm playing football. He told another prosecution witness, however, that he cut it going through a window on Ringgold Street and that he (appellant) got some money. At the close of the Commonwealth's case, the defense rested.
Appellant's initial argument stems from the testimony of Detective Francis McGurk of the Homicide Division of the Philadelphia Police Department, who was assigned to investigate decedent's death and to question appellant. On direct examination, testifying for the Commonwealth, Detective McGurk read appellant's signed statement to the jury. Although the statement contained numerous references to "Mingo", at no time during direct examination was Detective McGurk questioned concerning "Mingo's" identity or his alleged participation in the killing. Nor did any of the other Commonwealth witnesses mention that a person named "Mingo" was also involved in the killing. On cross-examination Detective McGurk was questioned about "Mingo." Appellant's attorney established that a person known as "Mingo" had been apprehended on September 24, 1969, and had given a statement but was later released and not charged with the crime. On redirect examination, over the objections of appellant's attorney, Detective McGurk testified that "Mingo" ...