Prather G. Randle, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, Philadelphia, for appellee.
Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Roberts, J., took no part in the consideration or decision of this case. Pomeroy, J., filed a concurring opinion.
On April 27, 1974, Clifton Palmer, was convicted by a jury in Philadelphia of murder of the second degree, aggravated assault, violations of the firearms act, and possession of an instrument of crime and prohibited offensive weapon. Prison sentences were imposed on each conviction, the sentences to run concurrently. These appeals followed.*fn1
Palmer asserts he is entitled to a new trial because of errors and deficiencies in the trial court's charge to the jury. An account of the evidence presented is thus necessitated.
From the Commonwealth's evidence, the jury could find the following:
On July 4, 1973, Eugene Ross and Herbert Halliday were residing at 2047 Indiana Avenue, Philadelphia, along with Mrs. Patricia Davis, the owner of the residence, her five children and her husband. On or about that date, Palmer began residing at the same residence. Animosity between Ross and Palmer developed during the period between July 4 and July 31, 1973 when the homicide here involved occurred.
In the early morning hours of July 31, 1973, an argument developed between Palmer and Ross over the presence of certain women at the residence. The next morning the argument continued and resulted in Palmer leaving the house.
Palmer then contacted Reginald Hamel, Andre Greene and Kevin Henderson in an effort to acquire a gun. Palmer's efforts were successful in that Henderson supplied him with a shotgun and ammunition. Palmer, Greene, Hamel and Henderson then drove to the general area of Palmer's residence. Palmer departed the vehicle and proceeded to the residence with the shotgun concealed in a guitar case.
Palmer, upon arriving in front of the house, called Ross, who was in the basement, and Ross came out and saw Palmer with the guitar case. Each beckoned to the other to come closer but Palmer walked in a "backward" manner away from Ross while at the same time watching him. Palmer crossed the street and continued to move backward as Ross moved toward him. Palmer then bumped ...