Berle M. Schiller, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Benjamin H. Levintow, Asst. Dist. Atty., Mark Sendrow, Asst. Dist. Atty., Assistant Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Pomeroy, J., did not participate in the consideration or decision of this case. Nix, J., filed a dissenting opinion. Manderino, J., dissents.
Gregory Martin was convicted by a jury of murder in the first degree, two charges of aggravated robbery, conspiracy, carrying a concealed deadly weapon and unlawfully carrying a firearm without a license. After a denial of post trial motions, a sentence of life imprisonment
was imposed on the murder conviction. A prison sentence of ten to twenty years was imposed on each of the robbery convictions; these sentences to run concurrently with the life imprisonment sentence. Sentence was suspended on the other convictions. An appeal from the judgment of sentence imposed on the murder conviction was filed in this Court. An appeal from the judgments of sentence imposed on the robbery convictions was filed in the Superior Court and later certified here. The appeals were consolidated for argument and disposition.
The sufficiency of the evidence to sustain the convictions is not challenged, nonetheless we have examined the record and are completely satisfied the evidence was more than adequate. From the Commonwealth's testimony, which remained uncontradicted throughout the trial, the jury could find these facts.
On January 4, 1971 about 10:30 p.m., Arthur Hopkins left a bar at 20th and York Streets in Philadelphia intending to visit his mother. Accompanied by Edmund Perry, he proceeded to his automobile which was parked nearby. As Hopkins started to unlock the door of the vehicle, four men, including the appellant Martin, approached with guns drawn. The gunmen threatened to kill them both unless they cooperated. Hopkins and Perry were ordered to enter Hopkins' car. Three of the four gunmen joined them. The fourth followed closely behind in another car. The two vehicles traveled to 19th and Cumberland Streets. The captives were then ushered through an alley into a house through the back entrance. In the kitchen, Hopkins and Perry were searched and ordered to sit on the floor. The abductors took from Hopkins $400 in cash and his eyeglasses. Perry was also robbed of some monies. Their hands were then tied behind their backs and they were blindfolded. They were then led out the front door of the house and forced into the back seat of Hopkins' car where they were joined by Martin. He ordered them to bend over
on the rear seat. In the meantime, Hopkins' blindfold became partially dislodged and he was able to observe a rifle or sawed-off shotgun in the hands of a front seat passenger. He was also able to see through the rear view mirror the same car following that had followed them before. After driving awhile the car stopped. The captives were led into a house having a small passageway and ordered to kneel. It was pitch dark. A match was lit and a loud noise went off. Edward Perry was fatally shot in the head by a shotgun. He fell against Hopkins. Hopkins began to struggle, but he was pushed back to the floor and a second shot was fired. He yelled that he was struck albeit he was not. A third shot went off narrowly missing Hopkins' head. At that time, he played dead. His would-be killers fled. After waiting a few minutes, Hopkins managed to free himself. He found assistance and reported the crime to the police.
While not questioning the sufficiency of the evidence, Martin maintains he was denied a fair trial because of certain conduct pursued by the assistant district attorney at trial. Initially, he complains of this officer's opening statement to the jury. It is urged it contained "many knowing false, misleading or inadmissible assertions" which ...