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COMMONWEALTH PENNSYLVANIA v. DAVID THORPE (09/21/79)

filed: September 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID THORPE, APPELLANT



Nos. 141 and 142 Special Transfer Docket Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia, at Nos. 195 and 197 May Term, 1976

COUNSEL

Mitchell S. Lipschutz, Philadelphia, for appellant.

William P. Boland, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: O'brien

[ 270 Pa. Super. Page 223]

Appellant, David Thorpe, was convicted in a non-jury trial of voluntary manslaughter, possession of instruments of crime and possession of a prohibited offensive weapon.

[ 270 Pa. Super. Page 224]

Post-verdict motions were denied and appellant was sentenced to two and one-half to ten years imprisonment for the manslaughter conviction with a consecutive three year probationary period for the weapons offenses. Following a petition to reconsider the sentence, the original sentence was vacated and appellant was sentenced to two and one-half to five years in the County Prison Work Release Program with a consecutive five year probationary program for the weapons offenses. This appeal followed.

The facts surrounding this criminal incident are as follows. On April 20, 1976, Philadelphia Police responded to a radio call and found the victim, Paul Williamson, lying at the corner of 39th and Brown with a large, gaping hole in his chest. The victim was transported to Presbyterian Hospital where he was pronounced dead on arrival. A post mortem examination revealed the cause of death to be a shotgun wound to the chest.

Paul Fisher, a Commonwealth witness, testified that on the date in question, he was with the victim when appellant approached. A short discussion ensued, and appellant walked away. Fisher walked into a store while the victim remained on the corner of 39th and Union. Approximately five minutes later, Fisher heard a gunshot from the direction of 39th and Brown. As he ran toward that location, Fisher saw appellant walking away carrying an object by the side of his leg. Fisher found the victim lying on the ground; the victim stated, "David shot me."

Another witness, David Carson, testified he was sitting on the porch of his residence at 3938 Brown Street. He saw appellant walk by twice, carrying an object wrapped in a towel. Carson evidently saw appellant approach the victim, remove the towel from a shotgun, and shoot the victim in the chest. After the victim collapsed, Carson saw appellant run into his (appellant's) house still carrying the shotgun.

At trial, appellant offered evidence to show prior incidents in which the victim or the victim's friends had either ...


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