Louis Samuel Fine, Fine, Staud, Grossman & Garfinkle, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James J. Wilson, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. For Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Nix, J., dissent.
In a non-jury trial, Melvin Fields was convicted of murder in the second degree and conspiracy. Motions for a new trial and in arrest of judgment were denied, and a prison sentence was imposed on the murder conviction.*fn1 This appeal was then filed.
The only issue posed by the appeal is whether or not the evidence at trial was sufficient to sustain the murder conviction. We conclude it was not.
As we have said many times previously, "'[T]he test of the sufficiency of the evidence . . . is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.'" Commonwealth v. Smith, 447 Pa. 457, 463, 291 A.2d 103, 105 (1972).
The instant prosecution stemmed from the fatal shooting of Herman Press. The Commonwealth's case against the appellant, Fields, was presented in this manner.
The first witness was Johnnie May Gale, who testified that on September 25, 1972, about 10:30 p. m., she and Press were seated on the doorstep in front of her residence on West Dauphin Street in Philadelphia, when "two boys" whom she did not know and could not identify "came around the corner and said to Herman [Press] are you from 29?" When asked what happened then, Miss Gale responded, "They shot him" and then fled. Then in answer to the question, "How many people shot him, one or two?", the witness replied "One".
The next witness was Alan Presbury, who testified that while he was in the kitchen of his residence which was "around the corner" on 31st Street from Miss Gale's residence, he heard "some shots"; that he ran to the front door and "saw three men running past the door"; that he recognized one as Fields and another as Leroy Gause, both of whom he knew before; and that as the three ran he saw Fields move his hands "down into his pants . . . . Like he had something under his shirt." When asked if he saw any weapons, the witness said, "No, I didn't."
The third and final witness for the Commonwealth was a police detective who testified that he went to a hospital shortly after the shooting; that Press was in the emergency room and in response to questions said he was seated on the steps with his girl friend when "Boonie [Leroy Gause] and Melvin Fields came up and asked if I was from 29. He didn't give me a chance ...