Thomas B. Rutter, A. Elash, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, James T. Ranney, Albert Becker, Milton Stein, Asst. Dist. Attys., Chief, Appeals Div., Martin H. Belsky, Asst. Dist. Atty., Chief, Adult Prosecution, Philadelphia, for appellee.
Jones, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., dissents. Eagen, J., did not participate in the consideration or decision of this case.
Charles McDowell was convicted by a jury of murder in the first degree and related offenses.*fn1 Following denial of post-trial motions he received a sentence of life imprisonment on the murder conviction and a concurrent sentence of 10 to 20 years imprisonment on the charges of aggravated robbery, conspiracy and unlawful possession of a firearm. This appeal followed.*fn2
There is no dispute that on the evening of September 2, 1969, James West, a bartender at the Piccadilly Bar in Philadelphia, died of a shotgun wound received at his
place of work. Shortly before the shooting, one Harold Williams observed the appellant (known as Cha-Cha) and four others, two of whom he identified as Calvin Davis (known as Jelly Roll) and Charles Bynum (known as Byno), walk past him and his group of four acquaintances, engage in conversation, and proceed toward the Piccadilly Bar. Williams saw Calvin Davis and two others, who appeared to be the appellant and Charles Bynum, enter the bar and exit shortly following the sound of a shot; as Calvin Davis ran out, the witness noticed that his left hand was clenched around a long pipe-like object.
McDowell was arrested thirteen days later, on September 15, 1969, and gave an oral statement to the police which was later reduced to writing in substantially the same form, and signed. He also made a tape recording of the written statement. All of these were placed in evidence by the prosecution through the investigating officer, Detective Hoff. In the statements McDowell admitted to meeting Calvin Davis and two others some twenty minutes before the shooting; the three were talking about robbing a bar. All four then proceeded in the direction of the Piccadilly Bar, although no particular bar had been decided upon. Outside the bar, they waited until the bartender was alone and discussed who was going to carry in the gun. After each of the four had refused to do so, Calvin Davis picked up the gun, which was covered by an umbrella, and entered the bar, the others following. Once through the door, Davis uncovered the shotgun and said to the bartender, "This is a stick-up". The bartender grabbed at the shotgun, which then discharged. After the shot, Davis, Bynum and McDowell left the bar and later met at Calvin Davis' house.
Appellant contends, inter alia, that prejudicial error occurred when a police witness for the Commonwealth was allowed to read to the jury portions of the confession of Calvin Davis which implicated the appellant. McDowell claims that this statement was inadmissible
hearsay and that its admission violated his constitutional right of confrontation. After carefully reviewing the circumstances of its admission into ...