James J. Phelan, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine Stotland, Asst. Dist. Atty., 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. Eagen, C. J., filed an opinion in support of affirmance in which Pomeroy and Nix, JJ., joined. Roberts, J., filed an opinion in support of reversal in which O'Brien and Manderino, JJ., joined.
The Court being equally divided, the judgment of sentence is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
Appellant, John Colbert, was convicted by a jury of murder of the first degree for the killing of Andrew Banks. Post-verdict motions were denied and a sentence of life imprisonment was imposed as the jury directed. This direct appeal followed.
Colbert now advances numerous assignments of error in support of reversal of the judgment of sentence and the grant of a new trial.*fn1 For the reasons stated herein, I would affirm the judgment of sentence.
On December 3, 1972, at approximately 9:39 p. m., Officers Leonard Mack and Luke Kirby of the Philadelphia Police Department responded to a call to investigate a disturbance at 1501 West Girard Avenue in Philadelphia. Upon their arrival at that address, the officers proceeded to the third floor apartment of Thomas Green where they found Andrew Banks lying in a pool of blood with a knife next to him. The officers removed Banks to Saint Joseph's Hospital where he was examined and pronounced dead. The
cause of Banks' death was later established as a single stab wound of the chest. John Colbert was arrested in connection with this incident on December 4, 1972, at approximately 2:10 a. m. at 1140 East Phil-Ellena Street and was subsequently charged with Banks' murder.
The evidence at trial clearly established Colbert fatally stabbed Banks in the chest with a butcher knife.*fn2 The Commonwealth introduced, inter alia, two statements made by Colbert to the police in which he admitted the stabbing, and Colbert's own testimony at trial conceded this fact. There is a sharp conflict, however, between the testimony presented by the Commonwealth and that presented by the defense as to the circumstances which surrounded the killing.
An eyewitness, Joseph Cox, testified as a Commonwealth witness that the stabbing was completely unprovoked. However, he admitted Colbert had been drinking intoxicants before the incident and was "intoxicated" at the relevant time.*fn3
Colbert's defense, on the other hand, attempted to establish that the killing was committed while he was intoxicated and/or was committed in self-defense. Testifying in his own behalf, Colbert stated that he, Banks, Cox and others were drinking in a first floor apartment at 1501 West Girard Avenue for most of the day on December 3, 1972; they later went up to Green's ...