Kalvin, Kahn, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief Appeals Div., A. L. Becker, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed an opinion in support of affirmance in which Eagen, J., joined. O'Brien, J., concurred in the result. Jones, C. J., took no part in the consideration or decision of this case. Roberts, Nix and Manderino, JJ., filed a memorandum in support of reversal and grant of new trial.
The Court being equally divided, the judgment of sentence is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
Appellant was convicted by a jury of first degree murder and sentenced to life imprisonment. Post-trial motions were denied by the court en banc and appellant has now filed this direct appeal.*fn1
The evidence adduced at trial established that on the night of October 10, 1970, the appellant shot and killed one Gregory Davis on the corner of 16th and Thompson Streets in Philadelphia. The victim apparently was a member of a street gang which was a rival to the one to which appellant belonged, but at the time of the shooting was unknown to the appellant. Based on information received by the police from two eyewitnesses that it was appellant who had fired the fatal shot, he was arrested two days later and charged with murder.
Three errors are advanced in support of reversal. Two of these relate to the failure to exclude from evidence appellant's confessions, one oral and one written; the third alleged error relates to the refusal of the trial judge to charge as the appellant requested on the issue of the weight to be given an oral confession.
First, appellant contends that his oral confession should have been suppressed because it was involuntary. The principal ground for this conclusion is that appellant was a juvenile (17 years old) and thus was incapable of making a voluntary, knowing and intelligent waiver of his constitutional rights. The inculpatory oral statement in question was made shortly after Wilson's arrest at his home at approximately 7:00 A.M. on October 12, 1970. According to the arresting officer, ...