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decided: October 16, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1971, Nos. 287 and 289, in case of Commonwealth of Pennsylvania v. Sidney Parker.


Charles Lowenthal, with him Ronald J. Brockington, for appellant.

Albert L. Becker, Assistant District Attorney, with him Milton M. Stein and James T. Ranney, Assistant District Attorneys, 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 Manderino. Mr. Chief Justice Jones dissents. Concurring and Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen joins in this dissenting opinion.

Author: Manderino

[ 458 Pa. Page 383]

The appellant, Sidney Parker, was convicted in a non-jury trial of murder in the second degree and the possession of narcotic drugs. His pretrial application to suppress an oral and a signed statement given to the police after his arrest was denied. These statements, which were admitted into evidence during appellant's non-jury trial, were similar to appellant's testimony at the trial. Motions for a new trial and in arrest of judgment were denied and appellant received a sentence of one to five years imprisonment for the murder and a consecutive three years sentence of probation for the possession of narcotic drugs. This appeal followed.

The evidence established that Thomas Smith, a close friend of the appellant for many years, died after an injection of heroin. The events preceding Smith's death were as follows. Smith, following a disagreement with his girlfriend, purchased a fifth of gin and visited the appellant and the appellant's wife on the evening of February 6, 1971. Several relatives of the appellant's wife were also present. During the visit, which lasted about two and one-half to three hours, Smith drank several glasses of gin. Around midnight, the appellant and Smith went out. Smith wanted to get some heroin and agreed to pay for it since the appellant had no money. The appellant said he knew where a purchase could be made. Both Smith and the appellant were drug users and had previously taken narcotics together. Two "nickel bags" of heroin were purchased and the two men went to a friend's home, known as a "shooting gallery," where visitors could take heroin. After their arrival, Smith began to drink again, even though the

[ 458 Pa. Page 384]

    appellant told him he should stop drinking. Smith wrapped a belt around his arm and attempted to insert into his vein a needle attached to a syringe containing heroin. When Smith had trouble hitting his vein, the appellant, at Smith's request, inserted the needle into Smith's vein. Smith then took over again and injected the heroin into his body. There is no evidence that the amount of heroin was other than Smith's normal dose. A short while later, Smith began moaning and slid to the floor. The appellant and other men present in the room went to the aid of Smith and attempted to revive him. When these efforts failed, the appellant wrapped Smith in a bedspread and took him to the hospital. The appellant then notified Smith's family by telephone that Smith was at the hospital in serious condition. Shortly thereafter, the appellant was told that Smith was dead.

Appellant was still at the hospital, waiting for Smith's parents, when the police arrived about ten or fifteen minutes later. When questioned by the police appellant said that he had found Smith and brought him to the hospital but denied any involvement in Smith's death. The appellant was then taken to the police station where he continued to deny any involvement until about sixteen hours later, when he gave statements to the police containing the facts previously recited in this opinion.

The appellant contends that the evidence, including his statements, was insufficient to establish his guilt of murder beyond a reasonable doubt. We agree and thus reverse and discharge the appellant as to the murder conviction.

Malice aforethought, express or implied, which is a necessary element of the crime of murder, may be found from the attending circumstances of the act resulting in the death. If the act of a defendant under all of the ...

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