No. 60 January Term, 1978 Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at No. 553 March Term, 1973
A. Martin Herring, Philadelphia, for appellant.
Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Division, Lee M. Kaplan, Philadelphia, for appellant.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ.
Appellant, Gregory Tate, was convicted following a non-jury trial of murder of the second degree and sentenced to a prison term of seven to twenty years.*fn1 Although prior to imposition of sentence, appellant, through his attorney, waived his right to file post-verdict motions, he nonetheless filed a direct appeal to this court. Being unable to determine whether appellant had voluntarily, knowingly and intelligently waived his right to file post-verdict motions, we vacated the judgment of sentence and remanded the matter to the Court of Common Pleas for an evidentiary hearing on this issue. Commonwealth v. Tate, 464 Pa. 25, 346 A.2d 1 (1975).
Following the evidentiary hearing, the court below ruled that appellant had, in fact, effectuated a valid waiver. Pursuant to said ruling, the court reinstated the judgment of sentence. Again on appeal to this court, we held the court below erred in its ruling and we vacated the judgment of sentence and remanded the case with instructions that appellant be allowed to file post-verdict motions nunc pro tunc. Commonwealth v. Tate, 473 Pa. 478, 375 A.2d 341 (1977).
Post-verdict motions were filed, argued and thereafter denied. Appellant was sentenced to a prison term of seven to twenty years. This direct appeal followed.
The facts, according to a statement given by appellant, are as follows. At some time prior to the instant homicide, a drug dealer and rival gang member (known as "Candy") sold adulterated drugs to John J. Jones, a member of appellant's gang. Jones took the drugs and died as a result thereof. Shortly thereafter, members of Candy's gang fired gunshots at members of appellant's gang, including two of appellant's brothers. As a result, appellant and approximately twenty-five fellow gang members, armed with a rifle and a shotgun went to the corner of 34th Street and Haverford Avenue in Philadelphia to look for members of Candy's gang. When a Cadillac with Candy and others came down Haverford Avenue, numerous shots were fired at and from the moving vehicle. Appellant, armed with the rifle, fired one shot. The Cadillac sped down the street and out of sight.
Philadelphia police officers appeared on the scene almost immediately. Appellant and his fellow gang members scattered, appellant ran up a nearby alley, dropped the rifle and waited for the police to leave the scene. The police discovered the unconscious body of William Fuller, the victim and innocent bystander, lying on the sidewalk at the bus stop at 35th and Haverford. Fuller was taken to Presbyterian Hospital where he died within a few minutes of arrival. An autopsy revealed that the cause of death was a gunshot wound of the chest and left arm.
When the original officers on the scene left the scene to take the victim to the hospital, appellant and two other gang members went back to recover the rifle. Two other officers, cruising the area in an unmarked police car, saw appellant walking down the street carrying the rifle. When the trio saw the officers exit from their car, appellant dropped the rifle and each of the three ran in separate directions, Only one of appellant's confederates was caught at that ...