No. 441 January Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, Honorable Joseph T. Murphy, in November Term, 1977 - No. 512
A. Benjamin Johnson, Jr., James S. Bruno, Philadelphia (court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., Marianne E. Cox, Asst. Dist. Attys., for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. O'Brien, C.j., and Roberts and Nix, JJ., concurred in the result.
On October 7, 1977, Alexander Jenkins, appellant, and his brother, Terence, stabbed one Jose Mercado to death in his apartment. An eyewitness who knew appellant testified that she saw him running out of the victim's apartment seconds before Jose Mercado was found bleeding to death in the hallway. Testimony also established that, after the killing, appellant had bragged to others that he had killed "a Spanish guy". Pursuant to a search warrant, certain items of clothing were found in appellant's apartment which were stained with blood of the same type as that of decedent but different than appellant's blood type.
Appellant admitted, on the witness stand, that he had told his uncle that he had cut Jose Mercado. Appellant had also given to investigating officers an inculpatory statement admitting he had repeatedly stabbed the victim, which statement was read into evidence.
Based upon the above, appellant was convicted by a jury of murder of the third degree, and sentenced to ten to twenty years imprisonment. This appeal followed.
Appellant's first contention is that the trial court erred in denying him the right to call two character witnesses to testify in his behalf. During its case in chief, the prosecution had called two witnesses, Diane Frierson, appellant's girlfriend at the time and the mother of his child, and Mrs. Mildred Frierson, Diane's mother.*fn1 Defense counsel informed
the court that Diane Frierson intended to invoke her Fifth Amendment privilege to refuse to testify on the ground that her testimony might tend to incriminate her, and requested the court to appoint counsel to represent her. The court then appointed separate counsel to represent both Diane and her mother.
Out of the jury's presence, each witness was called to the stand and sworn, and each witness pleaded the Fifth Amendment to each and every question asked to her, including "do you know the defendant, Alexander Jenkins?" (Notes of Testimony, April 7, 1978, at 5.105 and 5.110).*fn2 The trial court permitted ...