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COMMONWEALTH PENNSYLVANIA v. JOSE CRUZ (05/30/80)

decided: May 30, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JOSE CRUZ, APPELLANT



No. 291 January Term 1978, Appeal from Judgment of Sentence of Court of Common Pleas of Philadelphia, Criminal Section, Trial Division, at No. 942 August Term 1977

COUNSEL

Stanley Bashman, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Division, Asst. Dist. Atty., Steven J. Cooperstein, Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., concurs in the result.

Author: Eagen

[ 489 Pa. Page 562]

OPINION

This is an appeal from the judgment of sentence imposed on June 20, 1978 by the Court of Common Pleas of Philadelphia County upon appellant, Jose Cruz, following his conviction by a jury of murder of the third degree and the denial of his post-verdict motions. The charges arose from the killing of one Nollie Bishop in the City of Philadelphia in June 1975. Cruz challenges the sufficiency of the evidence and asserts five trial errors were committed by the trial court. We reject his contentions and affirm the judgment of sentence.

The evidence produced at Cruz's trial established the following: On the night of June 28, 1975, Kenneth Hill observed a man he believed to be sleeping in the back seat of an automobile parked in the 5400 block of Baynton Street in Philadelphia. The following afternoon when Hill again saw the man in the same position, he opened the car door and discovered he was dead. The victim, identified as Nollie Bishop, also known as Dennis Bishop, had been dead for at least twenty-four hours, and his death had been caused by sixteen stab wounds of the chest and abdomen inflicted with a small object, such as a Phillips screwdriver or an ice pick, and by strangulation around the neck occurring at about the same time as the stabbing.

[ 489 Pa. Page 563]

Detective Floyd Gallo was assigned to investigate Bishop's murder, but no leads were discovered, and the investigation was dormant for over two years. On July 25, 1977, Officer James Greer, who was on routine patrol in the 5400 block of Wakefield Street in Philadelphia, observed Cruz and one Glenda Jean Swift on the street arguing in loud voices. During questioning, Swift told the officer there was a bench warrant outstanding for Cruz. Officer Greer transported Swift and Cruz to the 14th police district station to determine whether, in fact, Cruz was wanted on a bench warrant.

At about the same time, Officer John Bailey arrived at the 14th district station with a man named Herbert Washington whom he knew personally. Officer Bailey overheard Cruz say Swift was his woman. Bailey knew, to the contrary, that Swift was Washington's girlfriend and told Cruz so. Thereupon, Cruz became enraged and said, "I must have been some kind of fool. I'm going to take her down with me." When Officer Bailey asked for an explanation, Cruz mentioned the Bishop murder that occurred two years earlier and asked to speak to Homicide Detective Floyd Gallo.

Cruz spoke with Detective Gallo by telephone and said he had tried to contact him for the past year to talk about the murder of Nollie Bishop. Gallo asked that Cruz be transported to homicide headquarters. When he was asked for identification, Cruz presented his own driver's license and a driver's license in the name of Dennis Bishop.

Officers George Ghee and Milton McCall were assigned to transport Cruz to homicide. Enroute they stopped at 219 North Broad Street to pick up the bench warrant for Cruz. While there, Cruz angrily told the two officers that "she is sending me down and I'm going to make sure she goes with me." He stated further that a couple of years before he ...


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