Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah Glass, Philadelphia, for appellant.
Rudolph S. Pallastrone, George A. Bachetti, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a dissenting opinion in which Jones, C. J., and Roberts, J., join.
Michael Long, appellee, was indicted for murder, conspiracy, and a violation of the Uniform Firearms Act. Long was brought to trial but, following the presentation of the Commonwealth's case, the trial judge sustained a demurrer to the evidence as to the charge of murder.*fn1 The Commonwealth filed these appeals.*fn2
For purposes of the demurrer, Long admitted all the facts which the Commonwealth's evidence tended to prove and all inferences reasonably deducible from those facts. Act of June 5, 1937, P.L. 1703, No. 357, § 1, 19 P.S. § 481; Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973). The Commonwealth's evidence consisted of an in-custody written and signed statement by Long,*fn3 the testimony of five police officers and one medical examiner. This evidence established the following:
At approximately 8:45 p. m. on May 14, 1973, police found Henry Harrison lying on the street near the intersection
of 25th and Harlan Streets in Philadelphia. He was suffering from gunshot wounds. The wounds resulted in Harrison's death shortly thereafter. Three bullets were recovered from Harrison's body. Testing established the bullets were .22 caliber.
Tyrone Jones was taken into police custody as a participant in Harrison's killing approximately one hour after Harrison was found and about three blocks from where Harrison was found. Jones had in his possession an automatic .25 caliber weapon with one .25 caliber bullet in the chamber, a magazine for the weapon which was not inserted in the weapon and which contained four .25 caliber bullets, four other .25 caliber bullets and a .22 caliber bullet. The automatic weapon was apparently incapable of discharging a .22 caliber bullet. As a result of information obtained from Jones, two police officers went to the residence of Long to apprehend him at 2:30 a. m. on March 15, 1973.
When the officers arrived at Long's residence located in a housing project, Long's mother indicated that he was not at home. The officers proceeded to another residence as a result of additional information obtained from Long's mother. While approaching the other residence, the officers observed two young men running from the rear. The officers recognized Long and one pursued him. Long was taken into custody shortly thereafter on the tenth floor of a high-rise building hiding inside a closet. Long was then escorted to the Police Administration Building where he arrived at approximately 2:50 a. m.
Long was then interviewed and gave an incriminating statement which the police recorded on a typewriter and Long signed. Long's statement detailed his activities on May 14, 1973. An officer read the statement into the record
at trial. The statement, in relevant part, is as follows (questions by police, answers by Long):
"Question: Where did you meet Tyrone [Jones] after you left Sins house?
Question: Where did you go from 23rd and Oxford?
Answer: Up to the parking lot at 23rd and Turner. We was looking for Turner Street, but we didn't see anybody there. Then we walked through the projects to 24th and Jefferson, down 24th to Columbia, walked up Columbia to 25th where the church is, walked down 25th to Sharswood or Harlan. I forget which one. Tyrone went in the store and I walked across the street from the store because I saw the man. Tyrone came out of the store and I walked over to Tyrone. We walked up to the bar and saw a whole lot of people at 25th and Master. When we saw a whole lot of people at 25th and Master, I said come on and we started walking back toward Jefferson. We past Harlan Street and we saw the dude standing about in the middle of the block of Sharswood and Harlan on 25th on the side toward 24th Street. The dude started gritting on Tyrone and Tyrone took about a couple of steps back and pulled that .25 automatic from his hip pocket and the dude was on the corner of 25th and Harlan and Tyrone fired three ...