No. 623 Pittsburgh, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at CC 7807106 and CC 7807259.
P. Andrew Diamond, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Price, Cavanaugh and Hoffman, JJ.
[ 289 Pa. Super. Page 377]
In this homicide case, appellant, Allen Freeman, was charged with murder in the first and third degree and violation of the Uniform Firearms Act. Following a jury trial before Popovich, J. (now a judge of this Court) and a jury he was found guilty of involuntary manslaughter and carrying a firearm without a license. Appellant's motions for a new trial and in arrest of judgment were denied and he was sentenced to six months to two years less one day imprisonment for involuntary manslaughter and five years probation and payment of court costs for the firearms
[ 289 Pa. Super. Page 378]
offense. Appellant has appealed to this court from the judgment of sentence.
Ironically, the appellant, a man of approximately seventy years of age, was acting as a good citizen at the beginning of the events which ultimately resulted in the charges against him. At about five p.m. on December 2, 1978, appellant went to the police station in Duquesne, Pennsylvania, to report to the police that Washie Williams was at the Mill Gate Tavern displaying a weapon. Officer Legin immediately went to the tavern to confront Mr. Williams with the information he received from the appellant. Williams denied having a weapon and the officer directed him to step outside the tavern. The officer told Williams that "it appears you have been drinking, you're pretty happy . . . take it easy." Williams told the officer, "hey, Legin, you know me, I'm cool. I'm cool." Since no weapons were observed on Williams the officer left the scene without taking any further action and Mr. Williams went back inside the tavern.
Unfortunately for both appellant and Mr. Williams, appellant did not go to his home or to some other place after reporting to the police that he had observed a weapon on Mr. Williams, but instead he returned to the tavern. Williams immediately confronted the appellant upon his return to the tavern and was very angry at his having reported to the police that he had a weapon. Williams denied that this was the case and to prove this point he removed his coat. During the argument between Mr. Williams and appellant, Williams told the appellant that he would kill him before the day was finished. Appellant testified that "he came back toward me with his fists like this, 'old man, I'm going to kill you now.'" Appellant testified he was scared at this point. He did not know if Williams still had the gun which he had observed at an earlier time in the day. He further testified that he thought Williams "would probably have broken my neck." The appellant drew a .32 caliber revolver from his pocket and fired two shots at Mr. Williams. Both shots found their mark and Mr. Williams died shortly afterwards as a result of his wounds. The appellant left the tavern
[ 289 Pa. Super. Page 379]
before the police arrived. He was arrested a short time later standing in front of the Duquesne Police Station where the drama had commenced not long before.
Appellant's first contention on appeal is that he was prejudiced by prosecutorial misconduct involving the concealment by the police of evidence of a weapon in the possession of Mr. Williams immediately prior to his being shot by the appellant. The facts do not support this contention. A witness for the Commonwealth, James Jeffries, testified that on the day of the shooting he observed Mr. Williams with a gun on his person. The witness testified that the gun was under Williams' jacket and the witness observed the gun about fifteen minutes before he saw the appellant arrive at the tavern. He heard Williams and appellant argue about the fact that someone had gone to the police and reported that Williams had a gun on his person. At the time of the argument Williams no longer had a gun, and to prove it to appellant, according to Jeffries, Williams pulled his jacket back on both sides. Another witness for the prosecution, ...