Alfred J. Di Bona, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
On the morning of February 27, 1972, Clarence Butts was fatally wounded in his apartment in Philadelphia. James Morris, a friend of Butts who lived nearby and was visiting him, suffered a gunshot wound of the neck in the same incident. The appellant, Robert James Cooley, was convicted by a jury of murder in the first degree for the death of Butts and of assault with intent to murder for the shooting of Morris. His post trial motions were denied and a sentence of life imprisonment was imposed.*fn1 This direct appeal followed.*fn2
Morris testified that he arrived at Butts' first floor front apartment at approximately 9:00 a. m. on the fatal day. Shortly thereafter Cooley, who lived in the adjacent first floor rear apartment, knocked at the front door. He was admitted by Morris who had seen appellant at Butts' residence on prior occasions and knew him as "Jim Dandy". Butts, an invalid, was seated on his bed and remained immobile during the entire episode which followed. Seconds after entering, appellant drew a pistol and commenced firing. The first two shots struck neither Butts nor Morris despite the close proximity of the three men in the room. A third shot discharged errantly as Morris knocked the gun from the appellant's hand. Appellant then retrieved the gun and shot Morris in the neck. Morris, although retaining consciousness, collapsed on the floor. In consequence, he did
not see the fifth shot fired, but he heard it and heard the door to the apartment close a few moments later. By the time Morris was able to get to his feet, appellant had departed and Butts was lying wounded on the floor. Butts hollered: "Get some help, get somebody, get somebody." Morris hastened to his cousin's nearby apartment and telephoned to the police.
Morris told the police that Butts had been shot and that "[t]he man who shot me is in the first floor, the rear apartment [of Butts' building]." Proceeding to Butts' apartment at approximately 9:30 a. m., the police discovered Butts lying on the floor near his bed moaning and bleeding from a wound in his back.*fn3 The investigating officers testified that Butts, in response to their inquiry as to what had happened, stated: "I was shot by Jim Dandy."*fn4 Then motioning with his hand toward the rear apartment, Butts added: "He's back there." Butts was rushed to a hospital where surgery proved unavailing; he died from the gunshot wound at 2:30 p. m. the same day.
Officers remaining at the scene arrested appellant in his apartment. A search uncovered a .32 caliber revolver in the trash bin at the rear of the apartment building; the subsequent ballistic test revealed that the gun was the one which was used to kill Butts.
Testifying on his own behalf, Cooley stated that the gun had not been in his possession on the day of the shooting and that it was impossible for him to have been in Butts' apartment at the time of the shootings because he was then suffering from an epileptic ...