Nos. 357, 505 January Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division Criminal Section of Philadelphia County, Imposed on Indictment No. 051, 052, 055, 056 February Term, 1977
Robert B. Mozenter, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., James Jordan, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., joins in the opinion of the court and also files a concurring opinion. Larsen, J., files a concurring opinion. Roberts, J., files a dissenting opinion in which O'Brien, J., joins.
In a jury trial in the Philadelphia Court of Common Pleas the appellant, Fred Williams, was convicted of second degree murder, robbery, burglary, and possession of an instrument
of crime. Post-verdict motions were denied. Judgment of sentence was set at life imprisonment for the murder conviction and concurrent terms of imprisonment were imposed for the remaining offenses.
Appellant, in the course of committing burglary and robbery, used an iron pipe to beat to death a fifty-four year old blind man who owned and lived in the apartment building where the burglary and robbery occurred. Eyewitnesses observed the appellant, lying in wait for the blind man to descend a flight of stairs, step from a hiding place and deliver twelve forceful blows with a metal pipe to the face, skull, and neck of the man. During this beating, the blind man, who carried a knife for protection, inflicted a number of minor cuts upon appellant. The blind man, believing a robbery to be in progress in the first floor apartment where he resided, had descended the steps. Appellant initiated the attack, and, while continuing to strike the blind man, said "the MF ain't dead yet, but he going to die now."
Appellant's first seven contentions are that: 1) the court erred in not charging the jury under 18 Pa.C.S. § 308, relating to evidence of intoxication being considered to reduce the degree of a murder conviction; 2) certain testimony should not have been admitted into evidence under the res gestae exception to the hearsay rule; 3) the court's charge to the jury on voluntary manslaughter was inadequate; 4) error was committed in instructing the jury as to self-defense; 5) the robbery charge should have been withdrawn from the jury's consideration; 6) inflammatory photographs were improperly admitted into evidence; and 7) the burglary verdict was not sustained by sufficient evidence. We find the foregoing assertions to be without merit. Appellant's eighth assignment of error is that the jury should have been charged on involuntary manslaughter.
The evidence establishes beyond a reasonable doubt that appellant committed murder during the commission of burglary and robbery. Appellant asks this Court to overturn his second degree murder conviction, and to grant a ...