Austin J. McGreal, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Appellant, Matthew Swint, was tried before a jury and found guilty of murder in the first degree for the killing of Walter Boatwright; guilty of assault and battery with intent to murder in the shooting of Samuel Hill; and guilty of unlawfully carrying a firearm on a public street at the time of his arrest. Motions for a new trial and in arrest of judgment were filed and denied. Appellant was sentenced to life imprisonment for the murder of Boatwright; one to three years imprisonment, to run consecutively with the life sentence, for the assault on Hill; and one to three years imprisonment, to run concurrently with the life sentence, for the weapons offense. This appeal followed.
At trial, the Commonwealth relied heavily on the eyewitness testimony of Betty McClenton, the deceased's common law wife, and Samuel Hill, a friend of the deceased. Their testimony may be summarized as follows. In the early morning hours of Sunday, August 13, 1972, Boatwright and Hill, who had been drinking in various bars the preceding Saturday evening, entered an after hours club to meet Betty McClenton. Boatwright asked McClenton if she was ready to return home. She replied that she would be ready as soon as she stepped outside to
speak with a friend. Once outside, she saw Swint walking up the street carrying a gun and shouting, "Where's that so and so Boatwright." She retreated to warn Boatwright and Swint followed her closely. When Hill saw Swint enter the club, he approached him. Swint shot Hill, then turned and shot Boatwright in the head. Swint went to where Boatwright had fallen, picked him up by the collar and fired another shot into his neck.
Dr. Dimitri Costostavlos, pathologist, testified that Boatwright died as the result of gunshot wounds of the head and neck. A .38 calibre bullet was recovered from the skull of the deceased, but the projectile causing the injury to the neck passed out of the body from back to front.
Swint testified in his own behalf as follows. Late on Saturday evening, Boatwright and Swint had an altercation outside a barroom which was broken up by spectators before any punches were thrown. Boatwright, however, threatened to return. Swint claimed that later, in the early morning hours of Sunday, he was at the Cobbler's Club when Boatwright arrived. Boatwright recognized Swint and drew a gun. Swint ran towards the back door, heard a volley of shots and departed in a companion's car. Swint went home without returning to the Cobbler's Club.
Inter alia, appellant argues that it was error to allow the Commonwealth to amend indictment 654, charging illegal possession of a weapon on August 13, 1972, the date of the shooting, to September 11, 1972, the date of Swint's arrest. We agree.
The original indictment charged Swint with possession of a weapon on August 13, 1972, and remained operative until midway through the trial. During the presentation of its case in chief, the Commonwealth, over objection, moved to amend the indictment to read that the offense occurred on September 11, ...