No. 435 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 1379, 1380 November Term, 1977.
Vincent M. Lorusso, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting opinion.
[ 284 Pa. Super. Page 211]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. The procedural history and facts relevant to the issues on appeal are as follows:
On November 17, 1977 at 11:15 p. m. the police discovered the body of a black male lying in an alley between 3302-3304
[ 284 Pa. Super. Page 212]
North Broad Street in Philadelphia. The victim, Ronald Tilghman, sustained a gunshot wound to the head and was dead when the police arrived. His personal effects were strewn about his body and his pockets were turned out. The police observed blood and water stains on the common steps of 3300-02 North Broad Street. They also noticed blood on the wall and the steps leading to the second floor of the same building. The police proceeded to the second floor apartment and knocked on the door. Appellant answered and stated, "I shot my friend -- it was an accident." More blood stains were observed inside his apartment.
Appellant informed the police that the .357 Magnum Smith and Wesson revolver and holster were in the dresser in the bedroom. Also recovered were five live and one spent .357 caliber shells.
Appellant testified at trial that he knew the decedent for two years prior to the shooting. He was exhibiting the gun to the decedent, and while manipulating the action, it accidentally discharged. He did not realize the gun was loaded and couldn't explain how it discharged. Appellant stated that he panicked, removed the body, and attempted to wash away the blood. Expert testimony at trial also indicated that because of built in safety features this gun could only be discharged by pulling the trigger with a finger while the action was manipulated. The gun would not discharge without pressure on the trigger.
During the trial, Officer Charles Holmes was asked to describe the layout of appellant's apartment wherein the following exchange took place:
"(Assistant District Attorney) Mr. Scott: The bedroom was to the rear of that?
Officer Holmes: Right. There was a lot of stuff over the counter as I remember. I think there was a bag of ...