Walter J. Collins, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Glenn S. Gitomer, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the consideration or decision of this case. Nix, J., concurs in the result.
Appellant Yuba Lopez was convicted in a jury trial of murder in the second degree.*fn1 After post-trial motions were filed and denied, he was sentenced to eight to twenty years imprisonment; no appeal was taken from that judgment of sentence. On April 11, 1974, Lopez filed a petition under the Post-Conviction Hearing Act*fn2 alleging, inter alia, that he had not effectively waived his right to an appeal. After a hearing the PCHA court entered an order on October 29, 1974, granting Lopez leave to file an appeal nunc pro tunc for that reason but otherwise denying relief. This direct appeal followed from that judgment of sentence.*fn3
At trial the following evidence, summarized by the trial judge in his opinion in support of the denial of post motions, was undisputed.
"The instant shooting occurred at approximately 9:15 P.M. on May 24, 1971, at the corner of Fairhill and York Streets in Philadelphia. The Commonwealth, relying on the testimony of one Arthur Danby, the driver of the car from which the fatal shot was fired, police officers and the statement of the defendant, was able to show that on the night in question, the defendant got into a car driven by Arthur Danby. The defendant carried with him a sixteen gauge single-barreled shotgun. Several blocks later, a friend of the defendant, a boy called 'Mackey' entered the auto.
The defendant and Mackey sat in the back seat. Danby did the driving, the defendant sat on the driver's side, directly behind Danby.
"As the automobile approached the intersection of Fairhill and York Streets, a group of boys, allegedly members of the Zulu Nation gang, were standing on the corner."
A shot was fired from the rear seat of the car and
"Charles Johnson, a young man who had been standing near the corner fell, fatally wounded by the single shotgun blast. The defendant then ordered Danby to 'go ahead' and keep driving. Several blocks later, both the defendant and Mackey got out of Danby's auto and took off in ...