Nolan N. Atkinson, Jr., Zack, Myers & Atkinson, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Steven H. Goldblatt, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix and Manderino, JJ., concur in the result. Roberts, J., filed a concurring opinion.
Appellant was convicted by a jury of murder in the first degree for the death by shooting of one William Bogier on December 9, 1969. Post-trial motions were denied by a court en banc, one judge dissenting and a sentence of life imprisonment, imposed.*fn1 This appeal followed.
Appellant has advanced nine assignments of error. Because we have determined that none of the errors alleged requires the granting of a new trial, we will affirm the judgment of sentence.*fn2
The Commonwealth's evidence established that on the night of December 8, 1969, Brown and another robbed a bar in Philadelphia. As they were running from the bar after the hold-up they were observed by a police officer, who pursued them and captured the co-felon. The defendant escaped arrest by entering a nearby house. Once inside the building, he broke into the second floor apartment then being occupied by a Mrs. Margaret Mitchell and her eleven year old son, Ardies, who were awakened when Brown burst through the door. At gunpoint, the appellant informed the Mitchells that he had just robbed a bar and that he merely wanted to hide out in the house "until everything would be cool."
Learning from the Mitchells that there was a third floor tenant, William Bogier, Brown forced the Mitchells to accompany him to Bogier's apartment. Brown then confronted Bogier and demanded money from him. Bogier said that what money he had was in his trousers pocket, whereupon Brown ordered the Mitchell boy to search Bogier's clothing. The boy found $5 which he turned over to the defendant. Dissatisfied with this small sum, Brown shot Bogier once in the chest.
This accomplished, Brown forced the Mitchells and the wounded Bogier to go with him from floor to floor while
Brown had Ardies Mitchell ransack the house for more money. The search turned up approximately $77 found in Mrs. Mitchell's pocketbook and in two jars of pennies. The group then returned, on Brown's order, to the third floor, where once again he compelled Ardies Mitchell to search Bogier's clothing. This time approximately $50 or $60 was found in a jacket. Declaring that he had known that Bogier had had more money than had been found previously, Brown shot Bogier five more times. These bullets struck the victim in the head, chest and thigh, and proved fatal.
The mad rampage continued with Brown forcing the Mitchells downstairs in a renewed search for money. When no more was found, the Mitchell boy was trussed up and placed in the bathroom. Brown then proceeded to rape Mrs. Mitchell, after which he shot her in the head. Returning to the boy, Brown shot him three times in the head. Miraculously neither the boy nor his mother died from their wounds; both were able to testify at trial to the above occurrences.
Following the orgy of violence at the Mitchell house Brown fled to the home of his girl friend and the mother of his child, one Stella Mae Robinson. At trial, Miss Robinson testified that appellant gave her a gun, which she soon threw away, telling her at the same time that he had just shot three people on Ginnodo Street. He described them as a little boy, a lady ...