Abraham J. Brem Levy, John F. X. Fenerty, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Wm. P. Boland, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones did not participate in the consideration or decision of this case. Eagen, C. J., filed an opinion in support of affirmance, in which Pomeroy, J., joined. Nix, J., filed an opinion in support of affirmance.
Appellant, James Bernard Myles, was convicted by a jury of murder in the first degree, forcible rape, and conspiracy. Post-verdict motions were denied, and this appeal followed. Appellant challenges the judgments of sentence for murder in the first degree, forcible rape, and conspiracy to commit rape. See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673,
art. II, § 202(1) and § 503(a), 17 P.S. § 211.202(1) and 211.503(a) (Supp.1974).
Appellant raises only two issues in this appeal. First, he argues that the evidence was insufficient to sustain the jury's verdict. After a verdict of guilty, the evidence must be reviewed in the light most favorable to the prosecution. Commonwealth v. Yount, 445 Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). We have reviewed the record and conclude that from the evidence and the reasonable inferences arising therefrom, the jury could properly have found that all the elements of the crimes of murder in the first degree, forcible rape, and conspiracy had been proved beyond a reasonable doubt. Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Williams, 450 Pa. 327, 301 A.2d 867 (1973).
Appellant next argues that the trial court erred by denying a requested jury instruction. Appellant requested the following point for charge: "Under an indictment for murder, you may return a verdict of voluntary manslaughter." The Court being equally divided as to this issue, the judgments of sentence are affirmed. Mr. Chief Justice Eagen and Mr. Justice Pomeroy would affirm for the reasons expressed in the opinion in support of affirmance in Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977) (J87 of 1974 filed January 28, 1977). Mr. Justice Nix would affirm for the reasons stated in his separate opinion in support of affirmance herein. Mr. Justice O'Brien, Mr. Justice Roberts, and Mr. Justice Manderino would reverse and remand for a new trial for the reasons expressed in their respective opinions in support of reversal in Cain, supra.
The judgments of sentence are affirmed.