Nos. 237 and 238 Special Session Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County at Criminal Section No. 1198 and 1213 of February Sessions, 1977 and No. 688 of April Sessions. 1977.
Norman Ackerman, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn* Manderino, J., concurs in the result. This decision was reached prior to the death of Manderino, J.
[ 273 Pa. Super. Page 102]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Section, by the defendant-appellant, Charles Vessells, after conviction by a jury of murder in the third degree, possession of an instrument of crime and aggravated assault on one James Jarmen. He was acquitted of four charges of robbery. The Commonwealth nolle prossed four other charges. Post-trial motions were denied. He was sentenced on the murder charge to imprisonment for not less than six (6) nor more than fifteen (15) years; on the charge of possession of an instrument of crime, he was sentenced to imprisonment for not less than one (1) year nor more than
[ 273 Pa. Super. Page 103]
five (5) years, said sentences to run concurrently with the murder sentence; and on the aggravated assault charge to not less than two (2) years nor more than six (6) years to run concurrently with the murder sentence.
The facts are briefly as follows:
The trouble started when the defendant went to a house at 2056 Moravian Street, Philadelphia, during the early afternoon of February 9, 1977. The nature of the establishment is sufficiently gathered from testimony of Commonwealth witnesses that on his arrival there were nine young men present, five of them were known by women's names, four were dressed in women's clothes and some were wearing panties, bras and wigs. The Commonwealth witnesses testified that the defendant robbed the group at gunpoint. The tenth person McCausland, was stabbed fatally. McCausland had come to the outer door and in a hand to hand encounter with the defendant he sustained his fatal wounds.
The defendant's story is that he had been directed to the address by his aunt, as a place where he could obtain excellent marijuana. He claims that he was sold inferior material, demanded his money back and was attacked by the group which required his defense by use of his knife. The evidence must, of course, be reviewed in the light most favorable to the verdict winner. Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975).
There was testimony that the defendant seized one of the group, Jetter, and put a knife at his head while he led a search for money and drugs; that he hit another with a cast iron skillet; that he hit a third with a curling iron; and that the group was made to throw all their money into a pile on the floor; and that Jarmen, one of the group, was kicked in the head and stabbed in the chest. The testimony was corroborated.
The defendant on arrest was found to have sixty-two ($62.00) dollars in paper money, crumbled in a ball, in his pocket. McCausland, the decedent, sustained three deep stab ...