No. 288 Special Transfer Docket, No. 289 Special Transfer Docket, Appeal from judgment of sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, Numbers 237-238 February Term, 1976.
Jack J. Bulkin, Philadelphia, for appellant.
Denis P. Cohen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Roberts and Lipez, JJ.*fn*
[ 273 Pa. Super. Page 180]
On April 6, 1977, a jury convicted appellant of murder of the third degree. After denying post-verdict motions, the trial court sentenced appellant to a term of imprisonment of 8 to 20 years. Appellant obtained new counsel and filed this appeal. He contends that (1) the evidence is insufficient to prove guilt beyond a reasonable doubt because the Commonwealth did not establish his identity as the killer; (2) the trial court erred in denying his motion for mistrial after the prosecutor referred to an unrelated criminal action against him; (3) an inculpatory statement of his introduced at trial was not voluntary; and (4) trial counsel was ineffective because he withdrew a pretrial motion to quash the indictment on the ground of undue delay and refused to allow appellant to testify at trial. We remand for a hearing to determine counsel's effectiveness.
On May 15, 1970, a bartender was shot and killed. Joyce Hopkins and Christine Booker testified at trial that they and appellant entered a bar on the afternoon of the incident. Because appellant had already had several drinks, they requested the bartender not to serve appellant, and he
[ 273 Pa. Super. Page 181]
complied. Hopkins, Booker and appellant later left the bar. As they left, appellant said, "Did you hear what he said to me? . . . that he wasn't going to serve me," then drew a gun and ran back towards the bar. Hopkins and Booker then heard a shot and Booker saw appellant running out of the bar. He passed Hopkins, saying, "I'm sorry," and fired a shot into the air. Booker saw no one else leave the bar.
Louise Pavonne testified that she saw a man in a blue jacket enter the bar, approach the bartender and state, "OK., Nigger. What do you got to say now?" She then heard a shot. She testified that earlier, she had seen a man in a blue jacket enter in the company of two women. Ernest Jacobs testified that he saw a man shoot the bartender and run out the door, and that he had heard the bartender refuse to serve the man about five minutes earlier. No witness was able to identify appellant as the killer. In his statement, appellant admitted that he was at the bar at the time of the shooting and that he had had an argument with the bartender.
Appellant argues that this evidence is insufficient to prove that he was the man who killed the bartender. We find the evidence sufficient. The jurors could have concluded beyond a reasonable doubt that appellant, after complaining of the bartender's refusal to serve him, drawing his gun and returning to the bar, was the man who moments later shot the bartender.
Appellant argues that the prosecutor improperly introduced evidence of an unrelated criminal matter. Before trial, appellant had been arrested and imprisoned on charges of non-support. During trial, the prosecutor asked a witness, "Are you also aware of a child support action against the defendant." Before the witness could answer, trial counsel objected and requested a mistrial. The court denied the objection and held a conference at side bar. During the conference, the court reversed its position and sustained the objection, but ...