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COMMONWEALTH PENNSYLVANIA v. EDWARD LEWIS HOLMES (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD LEWIS HOLMES, JR., APPELLANT



No. 84 March Term, 1977, No. 91 March Term, 1977, Appeal from the Orders of the Court of Common Pleas of Alleghency County, Criminal Division, at CC7504188A, dated December 8, 1976, and at CC7508629A and CC7508630, dated December 14, 1976, which latter two cases involved Orders appealed to the Superior Court of Pennsylvania at No. 397 April Term, 1977 and certified to the Supreme Court of Pennsylvania on January 21, 1977.

COUNSEL

Larry P. Gaitens, Lucchino, Gaitens & Hough, Pittsburgh, for appellant.

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

O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Eagen, C. J., did not participate in the consideration or decision of this case. Larsen, J., filed a concurring and dissenting opinion.

Author: Nix

[ 480 Pa. Page 538]

OPINION

On April 19, 1975, at approximately 11:00 p. m. Howard Wilcox, Richard A. Mitchell and Kenneth Latimer drove to Haverhill Street near Singer Place in the Borough of Wilkinsburg for the purpose of purchasing cocaine. Mitchell and Wilcox had made arrangements through an intermediary, Thomas Banks, to purchase the drugs from a seller who was later identified as being Edward Lewis Holmes, Jr., appellant, who arrived alone at the scene of the intended transfer in a white Thunderbird automobile.

Wilcox and Holmes were in or near the Thunderbird automobile for several minutes and then they both walked to the Mitchell car. The appellant suddenly exclaimed, "This is a rip-off", whereupon he fatally shot Wilcox in the head and shot Mitchell in the body. Latimer fled when the shooting began and was pursued by the appellant who shot at and fought with him. Latimer was able to escape without serious bodily injury after the gun was knocked from appellant's grasp.

Appellant left the scene of the crime and was not arrested until May 14, 1975. Prior to May 14, 1975, the police received information suggesting that appellant might be the person involved, but the information was not sufficient to establish probable cause for arrest. The police also received information that appellant had a court commitment in an unrelated matter on May 14, 1975. As a result the police instructed Mitchell and Latimer to appear at the court house. Mitchell appeared and made an identification of

[ 480 Pa. Page 539]

    appellant, who was then taken into custody. Later that day Latimer identified appellant at a line-up.

Appellant was indicted for the murder and robbery of Wilcox on June 19, 1975. On October 27, 1975 appellant was arrested on the charges of aggravated assault and recklessly endangering another person for the attacks on Latimer and Mitchell. He was indicted for these latter charges on December 8, 1975. There has been no explanation for the delay in arrest on the charges in the assaults upon Latimer and Mitchell. Appellant requested that the indictment for the robbery of Wilcox be tried separately from the murder indictment and this request was granted. The indictments for the offenses relating to Mitchell and Latimer were not scheduled for trial until after appellant's conviction on the murder indictment. The latter offenses were consolidated for trial with the robbery indictment.

After a jury trial appellant was convicted of murder in the first degree for the killing of Wilcox and sentenced to life imprisonment. The trial commenced on December 8, 1975 and the verdict was announced on December 12, 1975. This case is before us on direct appeal.*fn1 Appellant's non-jury trial for the robbery of Wilcox and the attacks on Mitchell and Latimer took place on March 2, 1976. Appellant was found not guilty on the indictment charging robbery of Wilcox but guilty as charged on the indictments charging the attacks on Mitchell and ...


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