No. 569 January Term 1976, Appeal from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia at Nos. 1597, 1598 November Term 1975
Eugene H. Clarke, Jr., Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts and Manderino, JJ., dissent.
Appellant, Charles M. Carter, was convicted in a non-jury trial of murder of the third degree and possession of a prohibited offensive weapon. He was sentenced to a term of imprisonment from six to fifteen years on the murder conviction and to a concurrent term of two and one-half to five years on the other conviction.*fn1
The prosecution emanated from the fatal shooting of Nathaniel Browning about 10:20 p. m. on October 15, 1975, at the intersection of 52nd and Jefferson Streets in Philadelphia, shortly after a Buick Riviera, operated by the victim Browning, collided with the rear of a Blue Volkswagon, operated by Carter. At trial, Carter testified and admitted firing the fatal shot, but claimed he did so in self-defense.
In this appeal, Carter contends the Commonwealth failed to meet its burden of proving the shooting was not in self-defense. Cf. Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975). We disagree.
Louis Grass, a Philadelphia police officer, while proceeding in his automobile for duty at his precinct, was an eyewitness to the shooting and described the event as a Commonwealth witness at trial. He testified that he observed Carter alight
from the Volkswagon and approach the Buick, which was standing on the street immediately to the rear of Carter's vehicle; that he heard a shot and then observed Carter fire two shots into the Buick in the direction of Browning; that Carter then re-entered the Volkswagon and fled the scene with Officer Grass in pursuit; that Carter finally stopped and fled on foot, abandoning the Volkswagon, but two other occupants were seized by Officer Grass. Carter was taken into custody about 1:30 p. m. on October 21, 1975.
Carter testified that he and Browning had a fight prior to the collision of the vehicles at the intersection, during which Browning threatened him; that, during this altercation, he noticed a gun in Browning's pocket;*fn2 that, after the collision and as he approached the Buick, Browning fired a shot at him and he fired a shot in return; that the Buick then started to back up ...