Edward G. Rendell, 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. Manderino, J., files a concurring opinion. Roberts, J., files a dissenting opinion in which Nix, J., joins. Nix, J., files a dissenting opinion in which Roberts, J., joins.
On January 30, 1975, appellant, Frank Lee Hart, was convicted by a judge sitting without a jury of murder in the third degree and possession of an instrument of
crime. Post-verdict motions were denied. Appellant was sentenced to a term of five-to-fifteen years' imprisonment on the murder in the third degree conviction and a concurrent term of one-to-two years' imprisonment on the possession of an instrument of crime conviction.*fn1
Appellant first argues that the evidence was insufficient to sustain his conviction of murder in the third degree. We do not agree. The facts surrounding the homicide are as follows.*fn2
On August 16, 1974, the "Redner Street Gang" and the "DeMarcos Gang" confronted each other in the DeMarcos' territory. The decedent, Ronnie Treadwell, was a member of the Redner Street Gang and appellant was a member of the DeMarcos'. An argument ensued between members of both gangs. Treadwell pointed a gun at appellant; it clicked but did not fire. Treadwell then turned away from appellant and ran. Appellant retreated to the next corner where another member of the DeMarcos Gang handed him a rifle. Appellant shot the decedent in the back. Appellant returned the rifle to the other gang member and walked away.
Having viewed the evidence in the light most favorable to the Commonwealth, we are of the opinion that the evidence was sufficient to sustain a conviction of murder in the third degree.
Appellant next argues that the court below erred in failing to suppress his ...