No. 151 Special Session Docket, Appeal from the judgment of sentence imposed September 6, 1977, of the Court of Common Pleas, Trial Division, Criminal Section, At No. 1343 - September Term, 1976
William Lee Akers, Philadelphia, for appellant.
Shelly Robbins New, Assistant District Attorney, 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 74]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, by the defendant-appellant, Samuel Guess, Jr., after conviction of third degree murder by a jury.
On August 30, 1976, the security guard of the Inn Towner Hotel on North Broad Street, Philadelphia, was summoned to Room 133 at about 11:45 P.M. When he got there he heard gunshots coming from the room and a female voice say: "No don't". He called his partner to watch the room and he called the police.
When he returned shortly with a police officer, they knocked on the door to Room 133 and someone from inside said he would open the door as soon as he put some clothes on. The guard, Tindal, also testified that he knew Samuel Guess from the defendant's visits to the hotel and that the voice answering from behind the door was that of Samuel Guess.
The victim's sister, Sheila Simmons, was employed at the hotel as a barmaid and was on the premises about the time of the shooting. She testified that between 11:30 P.M. and
[ 273 Pa. Super. Page 7511]
:45 P.M. that night she was told of noises in Room 133. Expecting her sister to be in that room with Samuel Guess, Sheila Simmons telephoned the room to see what was wrong. She testified that Guess, whom she knew, answered the phone and told her that Jane was all right, that she was fine. But, then, Sheila heard her sister's voice in the background say, "No, I'm not, Sheila, I'm dying".
Shortly thereafter, other police officers arrived. When they entered the room, Jane Spalding was lying on the floor moaning and severely wounded. She had been shot seven times. The defendant was the only other person in the room. The victim's sister came to the room and was asked to put some covering on Jane's body. At that point, the victim said to her sister, "Why did he do it". When the police inquired of Guess about the gun, he directed them to a .25 calibre automatic pistol under a pair of trousers on the bed. Shortly thereafter, Jane Spalding died of the seven gunshot wounds, all from a .25 calibre weapon.
At trial, the Commonwealth also presented the confessions of the appellant in which he admitted that he shot ...