Walter T. Darmopray, C. F. Stouffer, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Chief, Appeals Div., Marianne E. Cox, Asst. Dist. Attys., for appellee.
Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Jones, former C. J., did not participate in the consideration or decision of this case. Nix, J., did not participate in the consideration or decision of this case. Manderino, J., concurs in the result.
Appellant William White was convicted by a jury of murder of the second degree, robbery and various weapons offenses in connection with the November 22, 1974 shooting of Walter Robinson and robbery of the Voo-Den Bar. This conviction followed a mistrial caused by the failure of the jury to reach a verdict at a previous trial on charges arising out of the same criminal transaction. Post-verdict motions were denied, and appellant was sentenced to life imprisonment. Appellant asserts that he was subject to double jeopardy when tried again following the mistrial, that counsel was ineffective for failing to raise a double jeopardy
claim at appellant's second trial, that the trial court at the first trial erred in its instruction to the jury on criminal homicide, and that trial counsel was ineffective for failing to object to the allegedly defective jury instructions.*fn* We affirm.
On November 22, 1974, appellant, identified by several witnesses, entered the Voo-Den Bar in Philadelphia. About ten minutes later, appellant pulled a gun out of his pocket and announced a holdup. The bartender, Robert Hicks, and the barmaid, Marcella Williams, both of whom knew appellant, regarded the announcement as a joke and refused to cooperate with appellant's demand for money. According to Hicks and Williams, appellant stated, "I am not joking, this is really a holdup . . ." and pointed the gun at Walter Robinson, who was standing a few feet away. Robinson begged appellant not to shoot, but appellant fired, fatally wounding Robinson. Appellant threatened to leave "three dead bodies" in the bar, and fired several times at Hicks, but the gun failed to discharge. Michael Hurd, a patron of the bar, gathered up the bar's evening receipts and persuaded appellant to leave with him. Appellant was arrested a few hours later and subsequently charged with murder and several other crimes arising out of the incident.
At trial, appellant admitted that he had entered the bar and had been holding a gun, but denied attempting to rob the bar. He claimed that earlier in the day he had asked Williams, the barmaid, to keep his gun for him and that he returned that night to retrieve the weapon; while he was placing the gun in his pocket, Hurd, who according to
appellant was intoxicated, grabbed appellant's arm, causing the gun to fire the ...