Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division at No. 8308 2875-76.
Helen A. Marino, Assistant Public Defender, Philadelphia, for appellant.
Jo-Ann Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.
Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Beck, Kelly, Popovich and Melinson, JJ. Melinson, J., concurs in the result. Wieand, J., files a dissenting opinion.
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On the Commonwealth's application for reargument, this case was granted en banc consideration to review a panel
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decision of this Court awarding the defendant, Walter Norman, a new trial. After an examination of the record facts and the law, we now reverse our initial decision of December 8, 1987, and affirm the judgment of sentence.
The facts, viewed in a light most favorable to the verdictwinner, as well as giving the Commonwealth all favorable inferences to be derived therefrom, reveal that, at approximately 5:30-6:00 a.m. on the 13th day of May, 1981, Cassandra Harris had exited her apartment and was on her way to the trolley station to go to work. When she heard the sound of a vehicle starting, she turned and saw the defendant drive next to her. He offered her a ride to the trolley station. She accepted.
It seems that Ms. Harris and the defendant had been living together from 1978 until November of 1980. When Ms. Harris learned that, while she was out of her apartment in December of 1980 to see a friend, the defendant had been charged with robbing and raping two women in her apartment, she discontinued living with him.
On the morning of the 13th of May, while supposedly en route to the trolley station, the defendant asked to reconcile with Ms. Harris. He wanted her to leave the jurisdiction since he had jumped bail on the rape and robbery charges arising in Delaware County. Ms. Harris was aware of the circumstances and refused the offer.
After the defendant had purchased gasoline, he continued to drive, and, between Woodland Avenue and Grays Ferry in South Philadelphia, "the discussion became pretty much intense" in regard to whether Ms. Harris would leave with the defendant. She repeated her position and this prompted the defendant to say, "there is a contract out on you". Ms. Harris asked why anybody would want to harm her.*fn1 At this stage, she reached for the door handle and the appellant
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accelerated and turned down a small street. Again, the defendant asked and was told by Ms. Harris that there could be nothing between the two. With this, the defendant, according to Ms. Harris, said, "Well, maybe there can't be nothing, nothing, and there's only one thing to do."
The defendant, after his remark to Ms. Harris, reached toward the back seat of the vehicle where a black jacket lay. It was Ms. Harris' belief that the defendant was "searching for -- wh[at she] thought was a gun." Ms. Harris reacted by reaching for the clutch, she also wanted to place her foot on the accelerator in the hope of causing the vehicle to move forward and draw attention to her plight.
When the defendant released his hold of Ms. Harris, he reached toward the back seat again. As told by Ms. Harris:
By this time, we were both wrestling for the gun. I grabbed at it, and I did have my hand on it, and I tried to put it between the cushions of the back seat, and so he was over me, grabbing the gun. By this time, I had fell [sic] from the front seat to the back seat * * * sort of like in the middle of the seat, lying on the back seat from the front seat. He reached over and placed the gun on my neck, the gun fired. By this time, I could feel the life from my body leave, and I asked him not to hurt me anymore, because there was nothing I could do to hurt him. So, I asked him to place my body somewhere where I could be found, and he did, and he left, and told me good-bye.
During the course of the assault, Ms. Harris recounted how, while holding her down with his left hand, the defendant adjusted the cylinder of the gun to align it so the hammer rested on a bullet. Also, after he shot the victim, the defendant stated, with an "expressionless" face and in a calm manner, "I should have killed you, I should have killed you."
It was not until 7:00 a.m., on the morning that she was shot, that Ms. Harris was found behind an Exxon station in some bushes. She could not speak or move. Thereafter, she was ...