No. 390 January Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at No. 1261 February Term, 1972
Lawrence J. Roberts, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Legrome Davis, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., files a dissenting opinion.
Appellant, Harry Twiggs, was convicted by a jury of murder of the first degree. Post-verdict motions were denied and appellant was sentenced to life imprisonment. A direct appeal was filed to this court. As one assignment of error, appellant alleged that his trial counsel was ineffective. That assignment of error could not be decided on the record available at that time and this court vacated the judgment of sentence and remanded the matter to the Court of Common Pleas in Philadelphia for an evidentiary hearing. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). Following the evidentiary hearing, the court determined that trial counsel was effective and reimposed the above judgment of sentence. This appeal followed.
Appellant first alleges that the evidence was insufficient to sustain the conviction for murder of the first degree. We do not agree.
The facts are as follows. On December 24, 1971, Gerald Bethea, the Commonwealth's sole eyewitness, was alone at the Philadelphia apartment of Thomas Cirwithian, the decedent. Appellant and a companion entered the apartment, and stated that they wished to buy some heroin. As Bethea turned around, the pair drew pistols and took certain personal belongings. When Cirwithian arrived at his apartment, Bethea told him of the robbery. Cirwithian got a pistol from a friend and, along with Bethea, went looking for appellant. The search, however, was unsuccessful.
On January 1, 1972, Cirwithian and Bethea were driving through West Philadelphia when they saw appellant board a bus. They followed the bus until appellant left the bus. Cirwithian, armed with a .22 caliber pistol, confronted appellant and a fight broke out. Appellant disarmed Cirwithian, who then ran toward his car and got in. Appellant fired at Cirwithian, ran toward him as he sat in his car and from point blank range shot the victim in the head. Cirwithian died as a result of this wound.
At the time of appellant's arrest he was in possession of a .22 caliber pistol and a .25 caliber semi-automatic pistol. A firearms examiner testified that the bullet removed from the victim's head was a .25 caliber bullet. The examiner further testified that the bullet in question could not have been fired from the victim's .22 caliber weapon. Because of insufficient markings, however, the firearms examiner was unable to positively identify the .25 caliber pistol as the murder weapon.
Appellant's version of the incident is different. Appellant stated that he was unarmed at the time he was accosted by Cirwithian. While disarming Cirwithian, a shot was accidentally fired. After appellant disarmed Cirwithian, he began chasing the victim across the street when he accidentally fired the gun a second time. Appellant maintained one of these two shots killed Cirwithian.
In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975), we articulated our test of ...