Irving L. Madnick, 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. Eagen, O'Brien and Nix, JJ., concur in the result. Jones, C. J., dissents.
This is an appeal from the judgment of sentence of life imprisonment imposed on appellant, Lynn Williams, following his conviction by a jury of murder in the first degree and the denial of his post-verdict motions.*fn1 For the reasons which follow, we reverse the judgment of sentence and remand for a new trial.
A review of the evidence will place in perspective the legal issue which compels a new trial.*fn2 On the evening of Sunday, May 23, 1971, appellant, accompanied by his girl friend, Debra Weintraub, was driving in his automobile in the Wynnefield section of the City of Philadelphia, looking for his cousin, Herbert Cain. In the course of his search he encountered Herbert's brother, Gerald Cain and several other persons. From Gerald Cain, Williams learned that someone wanted to purchase marijuana and methedrine, commonly known as "speed", for the sum of $500. Williams was carrying a .38 caliber snubnose pistol and "dumdum" bullets which, soon after the encounter with Cain, he exhibited to the group.
Cain and two of his companions then joined Williams and Miss Weintraub and together they drove to the Marriott Motor Hotel in Bala Cynwyd, where the individual who wanted to buy the drugs reportedly was staying. En route to the hotel appellant expressed his intention to hold up "somebody" at the hotel. He then gave his gun
to Gerald Cain and told him that he was to use it in the holdup; Miss Weintraub, according to the plan formulated by the appellant, was to go into the hotel and pretend to be Gerald Cain's girl friend. She became frightened, however, and asked to be taken home. Williams told her not to worry because there wouldn't be any shooting. One of the others in the car, however, explained, "If we have to, we'll kill them."
Arriving at the Marriott, Cain, Debra Weintraub and the other two men went into the hotel, the appellant remaining in his car in the parking lot. Miss Weintraub slipped away from the others and ran outside. Seeing a police cruiser, she ran up to it and told the officer of the holdup plan, stating that "there was going to be some shooting done." The officer apparently discounted her story and sent her home in a taxicab.
Approximately fifteen minutes after he had gone inside the hotel, Cain returned to Williams' car with one Glenn Edwards, identified by Cain as the person who wished to buy the drugs. When Williams saw that Miss Weintraub was not with Cain, he went inside the hotel to look for her. He there telephoned his apartment and talked with one David Hunt. Williams asked Hunt if he knew where he (Williams) could purchase some marijuana or methedrine. When Hunt answered in the negative, Williams asked him if he wanted to rob the guy he was with who, Williams said, had $500. Hunt replied that "stickups weren't my thing," but that two other men then in the apartment, Daniel ("Little Dan") Clark and Calvin ("Pepper") Williams, had overheard the conversation and were interested in the robbery plan. These two suggested a "shooting gallery"*fn3 on Irving Street as a place to stage the hold-up. Williams then spoke to Pepper and Little Dan directly. He told them that he would meet them at the "shooting gallery" and would
slip his gun to one of them. He also told them that he wanted it to appear that he was the target of the robbery.
Appellant returned to his car and drove, with Gerald Cain and Glenn Edwards, to the Irving Street address. There they were greeted by Little Dan and Pepper, and the latter led everyone to the back of the darkened house. When they reached a backroom, appellant gave his gun to Pepper. Pepper grabbed Edwards by the arm, threw him up against the wall and commanded him to "get it up." He repeated the order a second time, then shot Edwards in the head and proceeded to rob him of his money. While this was going on, Little Dan fled, followed shortly by the others. Williams and Cain ran to Williams' car and drove away. They came upon Pepper at the corner of 52d and Locust Streets, and appellant asked him what he had done with the gun. Pepper replied that he had thrown it away in a vacant lot. At Williams' direction Pepper then retrieved the gun and returned it to the appellant, who placed it in the glove compartment of his car.
Williams, Pepper, and Cain drove to appellant's apartment, where David Hunt and Little Dan had preceded them. Pepper took the Edwards money from his pocket and, after counting it, announced that he was taking $115, was giving $45 to Little Dan, and that Williams and Cain should divide the remaining $70. Cain and the appellant took their shares, left the apartment and drove to Cain's apartment in Bryn Mawr where appellant stayed the night. The next morning he drove to his mother's house in Philadelphia where he hid the gun in a metal box in his sister's bedroom. Two days later he was arrested outside of his apartment building on Walnut Street, having been pointed out to the police by Gerald Cain.
It is manifest from the foregoing summary that the evidence adduced at trial was ...