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COMMONWEALTH PENNSYLVANIA v. FRANK MILLER (01/29/76)

decided: January 29, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK MILLER, APPELLANT



COUNSEL

Nicholas J. Nastasi, Arthur R. Shuman, Jr., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Benjamin H. Levintow, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Nix

[ 465 Pa. Page 460]

OPINION

Appellant was tried and convicted before a jury on the charges of murder in the first degree, conspiracy to commit murder and unlawfully carrying a firearm. After dismissal of post-verdict motions, a sentence of life imprisonment was imposed under the murder indictment. It is that judgment of sentence which is presently before us on direct appeal pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202(1), 17 P.S. § 211.202(1).

On March 1, 1972, Mr. James Robinson, the deceased, and his wife purchased six bags of what was purported to be heroin from a Mr. Hampton. After injecting the substance the deceased and his wife did not receive the expected reaction and they set out again in search of Mr. Hampton to register their complaint. Later during the evening, they located Mr. Hampton in a bar. At that time, Hampton was accompanied by his brother, Robert, and Frank Miller, the appellant. An altercation ensued during which Robert obtained a gun from behind the counter and threatened to shoot Robinson. Robinson ran from the bar followed by appellant and others.

Robert Hampton remained in the bar and a short time thereafter, appellant entered and requested Robert to give him the gun stating: "Give me the (profanity) gun and I'll show you what to do." Appellant took the gun and proceeded out of the bar in pursuit of the deceased. The appellant encountered the deceased approximately one half block away and shot and killed him. The cause of death was determined to have been a gunshot wound of the head.

[ 465 Pa. Page 461]

Appellant first claims that he was improperly barred from testifying at trial on his own behalf because of the possibility of impeachment by the introduction of his extensive prior criminal record of convictions. Appellant relies on our decision in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) to support this contention. This reliance, however, is clearly misplaced.

The only reference to the fear of impeachment as being the basis for the decision not to testify occurred after the Commonwealth had closed its case and the defense had rested without offering any evidence. In response to the court's questioning, the following took place:

"THE COURT: Did you wish to say anything further in regard to your decision ...


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