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COMMONWEALTH PENNSYLVANIA v. JAMES T. FRENCH (05/27/83)

decided: May 27, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES T. FRENCH, APPELLANT



No. 80-3-638, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at No. 2148 April Session, 1979, entered May 28, 1980.

COUNSEL

Peter C. Bowers, (court-appointed), Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Marianne Cox, Asst. Dist. Attys., Philadelphia, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, Hutchinson and Zappala, JJ. McDermott, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 501 Pa. Page 135]

OPINION OF THE COURT

This is an appeal from a judgment of sentence of imprisonment of eleven and one-half to twenty-three months imposed by the Court of Common Pleas of Philadelphia on a jury's verdict of guilty of voluntary manslaughter. Appellant, James French, seeks a new trial on the basis of several allegations of trial error, none of which warrants relief. Hence we affirm.

Appellant's conviction stems from the shooting death of John Kerwood, who was found dead in the rear parking lot of a high school on September 24, 1979. The evidence at trial established that on the evening of the shooting, after engaging in an argument at a nearby shopping mall, appellant and Kerwood agreed to meet in the school's parking lot to have a "fair fight." Shortly after the two went to the rear parking lot, their companions, who had accompanied them to the school, heard the sound of several gunshots. Upon arriving at the scene, the companions found the body of Kerwood, who had been shot twice. Appellant was nowhere to be found.

[ 501 Pa. Page 136]

Appellant was subsequently apprehended and charged with murder, voluntary manslaughter, and possession of an instrument of crime. At trial, the Commonwealth proceeded on the theory that appellant had entered the parking lot carrying a gun and had shot Kerwood intentionally. Appellant took the stand in his own defense and maintained that it was Kerwood who had been carrying a gun, that Kerwood had threatened him with it, and that, after a struggle over control of the gun, in which appellant had managed to disarm Kerwood, he had shot Kerwood after Kerwood had lunged toward him. Appellant admitted that he had shot Kerwood a second time after Kerwood had fallen from the first shot. The jury found appellant guilty of voluntary manslaughter and not guilty of murder and possession of an instrument of crime.

While post-verdict motions filed by trial counsel were pending, new counsel was appointed, who argued the pending motions previously filed by trial counsel as well as motions filed pro se by appellant. As of the date of sentencing, appellant had already served the minimum term of imprisonment imposed. Parole was granted, along with a probationary term of eight years.

Appellant challenges, on evidentiary grounds, the Commonwealth's use of two written statements which were given to police by Kathy Gorski and Jeffrey Gitler, companions of appellant who had been with appellant on the evening of the shooting. In preliminary statements to police, Gorski and Gitler maintained that they lacked knowledge of the details of the incident. In a subsequent statement, however, Gorski told police that she "was pretty sure" that she had seen someone pass a gun to appellant at the shopping mall after the argument between appellant and Kerwood. Gorski added that appellant twice had said, "I'm going to kill him." Gitler, in his second statement, told police that, while en route to the high school, he had seen ...


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