Joseph R. Danella, Lipschitz & Danella, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James J. Wilson, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Pomeroy, J., concurs in the result.
Appellant Andre Shaw was charged with murder of the first degree, aggravated robbery, and burglary in connection with the May 2, 1972 shooting of Max DuBose and robbery of the Jamaica Inn. On March 21, 1973, a pre-trial motion to suppress an expended shotgun shell, a sawed-off shotgun
and two unexpended shotgun shells, was denied. A jury convicted appellant on all three charges, post-verdict motions were denied, and a sentence of life imprisonment was imposed. In this appeal, appellant contends that the court erred in denying his motion to suppress this evidence.*fn1 We agree, reverse judgments of sentence, and remand for a new trial.*fn2
On May 2, 1972, at approximately 1:00 p. m., three men robbed the Jamaica Inn and its patrons. One of the patrons, Max DuBose, was shot and killed during the incident, and the assailant and his accomplices fled. An eyewitness informed police of the shooting and robbery.
Lieutenant Donald Patterson supervised the investigation. He examined the victim's wound and determined that the gunman used either a small caliber shotgun or a large caliber rifle. Lieutenant Patterson interviewed eyewitnesses,
who described the race and approximate height, weight, and age of the assailant and his accomplices. One eyewitness reported the general direction in which the three men headed. An eyewitness said that one of the men associated with "a fellow by the name of Shaw." Lieutenant Patterson checked police records, discovering that a Shaw family ...