No. 566 Philadelphia, 1981, No. 590 Philadelphia, 1981, Appeals from Orders of the Court of Common Pleas, Criminal Division, Philadelphia County, Nos. 610/612 615 Jan. Term, 1976 and 7601-610/612 615.
Burton A. Rose, Philadelphia, for Mitchell, appellant (at No. 566) and appellee (at No. 590).
Ellen Mattleman, Assistant District Attorney, Philadelphia, for Commonwealth, appellant (at No. 590) and appellee (at No. 566).
Hester, McEwen and Shertz, JJ. McEwen, J., files a concurring opinion. Shertz, J., did not participate in the consideration or decision of this case.
[ 303 Pa. Super. Page 36]
The defendant-appellant was indicted for Murder, Robbery, Conspiracy and Weapons Offenses. The jury trial was delayed while the Supreme Court of Pennsylvania heard his pre-trial appeal on the issue of whether Rule 1100 of the Pa. Rules of Criminal Procedure was violated. The defendant-appellant lost on the pre-trial appeal and the case was remanded for trial on May 13, 1977.
The trial convened on May 25, 1977; however, a mistrial resulted. The defendant-appellant then appealed from an order denying his motion for a dismissal on double jeopardy grounds. This appeal was eventually rejected by the Supreme Court and a jury trial was finally commenced and completed.
On September 10, 1980, a jury found the defendant-appellant guilty of Murder of the Second Degree, Robbery and
[ 303 Pa. Super. Page 37]
Possession of an Instrument of Crime. Post-trial motions were filed.
Both the Commonwealth and defendant-appellant, Widmark Mitchell, have appealed Orders filed by the Court of Common Pleas of Philadelphia County in response to the defendant's post-trial motions. The Commonwealth has appealed the granting of the defendant-appellant's motion for a new trial; the defendant has appealed the denial of his petition in arrest of judgment.
On July 6, 1975, the defendant-appellant and his co-felon, Donald Griffin, entered a house at 3135 Arizona Street, Philadelphia. The defendant, while armed with a handgun, demanded cash from Shirley McClennan. Also present in the house during the armed robbery were James Field, Jeffrey Hayes, William Curtis, Mrs. McClennan's husband, L. C. McClennan and the victim, James Fulton. Blows were inflicted by the co-felons on Fields, Curtis and the victim; and, Fields and the victim were robbed as well. Without provocation, the defendant-appellant shoved the victim into a chair and fired a fatal shot into his chest. Before fleeing the scene, the co-felon forced Mrs. McClennan, Fields and Hayes to the basement.
In an effort to gain affirmance of the lower court's granting of a new trial, the defendant raises several arguments, a few of which warrant our response. All are without merit; therefore, we reverse the order granting the new trial. We defer to that portion of the lower court's opinion denying the motion in arrest of judgment. Consequently, we reverse in part and affirm in part.
Defendant-appellant argues first that a new trial is mandated by trial counsel's failure to locate, interview and subpoena a witness, William Curtis. Curtis was present at the time the robberies, assaults and killing occurred and actually witnessed most of the criminal acts. After the criminal incidents, yet on the same day, Curtis issued two separate statements to the Philadelphia Police. In one statement, he ...