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COMMONWEALTH PENNSYLVANIA v. FRANK W. BARKY (03/23/78)

decided: March 23, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK W. BARKY, JR., APPELLANT



COUNSEL

Lester G. Nauhaus, Louis R. Dadowski, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Robert A. Zunich, Asst. Dist. Attys., Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., joins in this opinion and files a concurring opinion in which Nix and Manderino, JJ., join.

Author: O'brien

[ 476 Pa. Page 604]

OPINION OF THE COURT

Appellant, Frank W. Barky, Jr., was tried by a judge and jury and was convicted of murder of the third degree. Post-verdict motions were denied, and appellant was sentenced to a prison term of ten-to-twenty years. This direct appeal followed.

The facts are as follows. On February 18, 1975, Ruth Miller, the victim, spoke on the phone with her daughter, Roberta Condos. The victim told her daughter that she was at appellant's home and that she and appellant would be going to West Virginia to visit a sick relative.

Between February 18 and February 23, Tom Quaill, a friend of appellant, attempted to contact appellant. During that period, Quaill both phoned appellant and went to his home. Quaill testified that he was unable to contact appellant.

On February 23, 1975, Mrs. Condos received a call from the relative in West Virginia who stated that the victim had never arrived in the mountain wilderness. After trying to contact her mother at appellant's home, Mrs. Condos called the McCandless police. A patrol car was dispatched to appellant's home, and the officer found all doors and windows locked with three cars sitting in the driveway. Lieutenant Charles Toth of the McCandless police decided to obtain a search warrant, after personally inspecting the outside of the premises.

After obtaining the warrant, Lieutenant Toth went to the Barky home, where he met fellow McCandless officer Kenneth Gravenstein and Allegheny County detectives Meinert and McNamara. After knocking several times and receiving no response, Meinert and Gravenstein forced open the kitchen door, breaking a safety chain in the process. After entering the house, the pair found appellant bleeding from the head with a shotgun pointed at them. After leaving the house to arm themselves, Meinert and Gravenstein re-entered the residence, again encountering appellant, who was

[ 476 Pa. Page 605]

    still armed with a shotgun. Meinert and Gravenstein again retreated from the house and then shot tear gas into the house. After entering the house for a third time, appellant was subdued and taken to North Hills Passavant Hospital for treatment of his head wound. Lieutenant Toth found Ruth Miller's body in the bedroom. The coroner testified that death occurred between 6:00 a. m. and 2:00 p. m. on Saturday, February 22, 1975. The cause of death was both asphyxia due to manual strangulation and multiple injuries to the rib cage area. Further police investigation revealed that all doors and windows were locked from the inside, with the possible exception of the garage door, which may have been locked from the outside.

Appellant eventually recovered from his wounds. He was, however, suffering from amnesia and was unable to remember anything about the alleged homicide or his wound, though he is ...


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