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COMMONWEALTH PENNSYLVANIA v. KIM MASON (11/05/86)

filed: November 5, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
KIM MASON, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. DARRYL LAMAR, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. EUGENE MILLER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. DARRYL FORD, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. GERALD JONES, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. MACK SMITH, APPELLANT



Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 798-811, 1400-1406 June Term 1979.

COUNSEL

Steven Dickstein, Philadelphia, for Kim Mason.

Thomas L. McGill, Jr., Philadelphia, for Darryl Lamar.

Francis X. Nolan, Philadelphia, for Eugene Miller.

Christopher G. Bokas, Philadelphia, for Darryl Ford.

Joseph P. Zawrotny, Philadelphia, for Gerald Jones.

Vincent M. Lorusso, Philadelphia, for Mack Smith.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for the Com.

Garold E. Tennis, Assistant District Attorney, Philadelphia, for the Com. in No. 1158.

Del Sole, Montemuro and Hoffman, JJ.

Author: Del Sole

[ 358 Pa. Super. Page 565]

The procedural history of this case reveals that on June 13, 1979, the Philadelphia County Investigating Grand Jury of November 29, 1978 issued indictments charging each of

[ 358 Pa. Super. Page 566]

    the six Appellants with the following criminal offenses arising from two separate firebombing incidents of Philadelphia residences on December 3, 1977: three separate counts of murder;*fn1 two separate counts of arson, endangering persons and endangering property;*fn2 causing a catastrophe and risking a catastrophe;*fn3 and criminal conspiracy.*fn4

Pursuant to the Investigating Grand Jury Act (the Act),*fn5 a probable cause hearing was scheduled but thereafter continued pending disposition of Appellants' motions to quash which challenged the constitutionality of the Act for failure to provide a preliminary hearing following indictment. The motions were subsequently denied. However, since the Legislature had amended the Act to provide for a preliminary hearing after indictment, such a hearing was conducted at the conclusion of which Appellants were held for trial on all charges. Appellants also filed motions to dismiss based on alleged prosecutorial misconduct during the grand jury proceedings. These motions were denied.

Following the denial after hearing of Appellants' suppression motions, a jury trial commenced on June 12, 1980. On June 27, 1980, guilty verdicts were returned on all counts against all Appellants with the exception of Appellant Smith. Appellants Jones, Mason and Ford were found guilty of first degree murder whereas Appellants Lamar and Miller were convicted of second degree murder. A mistrial was declared as to Appellant Smith because the jury was deadlocked. On retrial however, Smith too was found guilty on all counts and specifically second degree murder.

[ 358 Pa. Super. Page 567]

Post-trial motions were filed and denied. Each Appellant was sentenced to consecutive terms of life imprisonment for the three murder convictions and consecutive sentences of imprisonment imposed for the other convictions. Timely appeals from the judgments of sentence were filed, consolidated, and are presently before this Court for review.*fn6

A summary of the relevant facts indicates that on the evening of December 3, 1977, members of the "Taylor Street" gang prepared to retaliate for the firebombing of a members home by the rival "Pierce Street" gang. Appellant Ford reportedly phoned the home of Fitzgerald Lawrence telling him to purchase some gasoline. Present at the Lawrence home, and on an extension phone was Alex Harper. Ford told Harper to obtain bottles sufficient for firebombs. Shortly thereafter, Ford and other members of the Taylor Street gang arrived at the Lawrence home. It was alleged that the members included Appellants Smith, Lamar, Miller, and Jones. Ford gave Lawrence keys to a car in order to obtain gasoline while Lawrence's brother Tyrone along with Harper and another individual, Keith Woodward, prepared for the arrival of the gasoline by obtaining bottles and tearing rags. Lawrence returned and the four filled six to ten "Colt 45" bottles with gas and placed rags into the bottlenecks. Ford reportedly then directed Lawrence to drive Lamar and an unidentified male to 2309 Mountain Street. Two other cars apparently went

[ 358 Pa. Super. Page 568]

    to a Gadson residence at 1330 Bancroft Street. Both homes were firebombed. At the Bancroft Street address, a woman and two children died in the fire. The Mountain Street residence failed to ignite as the bottle failed to break.

After grand jury indictment, Harper, Woodward, and both Lawrence brothers agreed to testify on behalf of the Commonwealth in return for favorable sentencing consideration on related crimes.

At trial, Fitzgerald Lawrence testified concerning the events of December 3, 1977 as well as to a conversation with Appellant Mason while both were incarcerated for unrelated crimes after the firebombings. Lawrence testified that Mason had admitted his participation in the firebombings.

Initially it is noted that:

[o]ne must either file post-verdict motions within ten days under Pa.R.Crim.P. 1123(a) or seek permission to file post-verdict motions nunc pro tunc under the Post Conviction Hearing Act as required by Pa.R.Crim.P. 1123(f). As we recently reiterated in Commonwealth v. Jackson, 336 Pa. Super. 609, 623, 486 A.2d 431, 439 (1984), "[o]ur Court will review only those issues which have been properly preserved for review, i.e., errors which have been raised specifically in written post-trial motions pursuant to Pa.R.Crim.P. 1123(a)."

Commonwealth v. Rosko, 353 Pa. Super. 307, 310, 509 A.2d 1289, 1290 (1986).

Additionally, "[w]e have not considered oral presentation adequate to preserve the issue since Commonwealth v. Blair, [460 Pa. 31, 331 A.2d 213 (1975)]" . . . . Commonwealth v. Gravely, 486 Pa. 194, 198 n. 1, 404 A.2d 1296 n. 1 (1979). "The only exception to this strict enforcement of the terms of Rule 1123(a) is the situation where an appellant, after failing to file proper motions, submits a brief raising alleged error and the post-verdict court, without objection, disposes of the appeal on the basis of the merits of the issues belatedly raised." Commonwealth v. Bilhardt,

[ 358 Pa. Super. Page 569269]

Pa. Super. 95, 98, 409 A.2d 81, 82 (1979). This exception does not exist for cases in which post-verdict motions were filed after September 4, 1979. Id., 269 Pa. ...


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