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COMMONWEALTH PENNSYLVANIA v. PRINCE A. GILLIARD (06/11/82)

filed: June 11, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
PRINCE A. GILLIARD, APPELLANT



No. 1520 Philadelphia, 1981, APPEAL FROM THE JUDGMENT OF SENTENCE OF MAY 27, 1981 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION, CRIMINAL SECTION NO. 2487 SEPTEMBER TERM, 1980

COUNSEL

Stephen P. Gallagher, Philadelphia, for appellant.

Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Cirillo and Lipez, JJ.

Author: Cirillo

[ 300 Pa. Super. Page 473]

This is a direct appeal following a conviction of murder in the second degree for which the appellant, Prince A. Gilliard, received a mandatory sentence of life imprisonment.*fn1

On July 29, 1980 at 11:30 P.M., police discovered the body of fifty-one year old Marshall Gibson, clad only in a bathrobe, in the fourth floor hallway of his apartment building at 237 South 48th Street in Philadelphia. He had been stabbed once inside the left shoulder blade with a 7 3/4 inch knife blade, sunk to its full depth. The appellant was arrested in Brunswick, Georgia on August 30, 1980 and charged with murder,*fn2 voluntary manslaughter,*fn3 involuntary manslaughter,*fn4 possession of an instrument of crime, generally,*fn5 and possession of an instrument of crime, concealed weapon.*fn6

In a post-arrest, signed statement which was admitted into evidence at trial, the appellant acknowledged that he took a stereo, television set, and other items from the apartment, but claimed that he killed the decedent in self-defense. The appellant alleged that he and the decedent had been drinking and that the stabbing was a reaction to the pulling of a gun by the decedent during an argument. The appellant subsequently filed a Motion to suppress this statement as well as certain identification evidence. After argument, this Motion was denied. On January 13, 1981 the appellant was tried before the Honorable Theodore B. Smith, Jr. and a jury on the charge of murder. On January

[ 300 Pa. Super. Page 47420]

, 1981 the appellant was found guilty of murder in the second degree. The appellant then filed Motions in arrest of judgment and for a new trial. On May 27, 1981, after hearing, the Motions were denied and Judge Smith sentenced the appellant to the mandated sentence of life imprisonment. This appeal now follows.

In seeking a new trial, the appellant has made numerous allegations of error on the part of the lower court. He contends, first of all, that the lower court erred in refusing his Motion for mistrial when a Commonwealth witness, detective Miller, disclosed that the appellant had charges, other than the one he was tried on, pending against him at the time of his arrest in Georgia. On direct examination the detective was asked:

DISTRICT ATTORNEY: Now detective, on August 30, 1980, where did you take this defendant into custody?

WITNESS: He was in the Glynn County police department cell room.

The appellant's counsel made no objection at this point. However, on cross-examination, the appellant's attorney ...


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