Nos. 89 and 90 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia, at Nos. 1532, 1536 and 1544 January Sessions, 1976
Vincent T. Snyder, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, and with him Nancy D. Wasser, Philadelphia, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
[ 271 Pa. Super. Page 244]
Appellant, William Rainey, was convicted in a jury trial of murder of the second degree and two counts of robbery. Post-verdict motions were denied and appellant was sentenced to life imprisonment with two ten-to-twenty year prison terms for the robbery convictions. This appeal followed.
The facts of the instant crime are as follows. On December 16, 1975, five men armed with guns entered Cavanaugh's Bar at 58th and Christian Streets in Philadelphia. After announcing a hold up, the group began taking wallets and money when off-duty Philadelphia policeman William Daniels, a patron in the bar in civilian clothes, ran for the door. Daniels was shot in the back and fell to the floor before reaching the door. On the way out, one of the robbers stepped over Daniels' body and shot him in the head. Daniels died as a result of the two bullet wounds.
One of the robbers left a briefcase behind in the bar. Inside was a piece of paper marked "Terez 474-3136". That telephone number was registered to a Mabel Dunning, 5901 Carpenter Street. Police went to the building and found it empty. After the landlady, Mrs. Dunning, arrived, police noticed an entrance to a crawl space in the ceiling. Upon searching the space, appellant and his three companions were found and arrested. Appellant admitted complicity in the robbery but denied involvement in the shooting. Armed with a search warrant, the police searched the premises and found four guns and the deceased's wallet and badge.
Appellant first argues that the trial court erred in refusing to grant a continuance because of pretrial publicity. At the commencement of appellant's trial, appellant sought a continuance because of two newspaper articles which mentioned that one of appellant's co-defendants had been convicted of murder of the first degree and had been sentenced
[ 271 Pa. Super. Page 245]
to death.*fn1 The trial court refused appellant's request for a continuance.
A decision on a motion for continuance is within the sound discretion of the trial court. Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976). Pa.R.Crim.P. 301(a). In the instant case, the court refused the motion, finding that the articles in question were factual in nature. Further, appellant offered no subsequent articles concerning his co-defendant's trial. The court, at the commencement of appellant's trial, instructed the jury that:
"Now, do not read newspapers or other stories about the trial or about the defendant. You must also avoid radio or television broadcasts which might ...