A. Harry Levitan, Herman Weiner, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Judy Dean, 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.
Appellant was convicted by a jury of murder in the first degree. His post-trial motions were denied and he was sentenced to life imprisonment. He now appeals from that judgment of sentence.
The appellant asserts two grounds for reversal: that the evidence was insufficient to support a finding of murder in the first degree, and that he was denied the effective assistance of trial counsel.
The evidence, viewed as it must be in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Long, 460 Pa. 461, 463, 333 A.2d 865, 866 (1975), Commonwealth v. Rife, 454 Pa. 506, 509, 312 A.2d 406 (1973), Commonwealth v. Rankin, 441 Pa. 401, 404, 272 A.2d 886 (1971), established the following: On the evening of March 1, 1972, the defendant was sitting with his wife in Mr. Chip's Bar located on Columbia Avenue in the City of Philadelphia. They were soon joined by another couple, James Robinson and his wife, Dolores. The Robinsons were looking for Henry Hampton, the defendant's
brother, who earlier that day had sold the Robinsons six bags of heroin. After sampling the heroin, the Robinsons had concluded that it was of poor quality and determined to recover their money from Henry.
Not finding Henry in the bar, and knowing Robert Hampton to be Henry's brother, Robinson demanded that Robert refund the purchase price. The defendant replied that he would give Robinson the money after he, Robert, had sold some more drugs. After the Robinsons had been waiting for several hours, an argument broke out between the Robinsons and the Hamptons. The defendant's wife at one point swung at Robinson with a glass in her hand, but missed. Robinson then asked Robert Hampton to calm his wife down; Hampton replied that he couldn't control her; Robinson again demanded a return of his money, and a struggle then erupted between the two men.
During the course of this fight, Robinson knocked Hampton over several bar stools and onto the floor. Regaining his feet, Hampton thereupon vaulted the bar, grabbed a gun out of his wife's pocketbook, (which she had earlier given the bartender to place behind the bar) and aimed it at Robinson. Dolores Robinson jumped in front of her husband and begged Hampton not to shoot him. At this moment the defendant's brother Henry entered the barroom and promptly jumped on Robinson's back. Robinson, a man of considerable strength and size, was able to exit the barroom even with Henry Hampton on his back. Once outside the barroom, he shook free of Henry, ran across the street and down Columbia Avenue.
The defendant, his wife, Mrs. Robinson and several other bar patrons, including one Frank Miller, followed Robinson out of the bar. Upon reaching the street, the defendant aimed the gun at the fleeing Robinson, but again did not shoot, apparently because of the ...