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COMMONWEALTH PENNSYLVANIA v. KELVIN MORRIS (09/22/89)

decided: September 22, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
KELVIN MORRIS, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, entered September 8, 1987 at No. 409-413 July Term 1982.

COUNSEL

Daniel M. Preminger, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Helen Kane, Robert A. Graci, Chief, Deputy Atty. Gen., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., and Zappala, J., concur in the result.

Author: Mcdermott

[ 522 Pa. Page 537]

OPINION

The appellant was tried by a jury and found guilty of murder in the first degree*fn1 and robbery.*fn2 After further deliberations that same jury rendered a verdict of death for the first degree murder conviction.*fn3 Post-trial motions were denied and the judgment of sentence was entered on September 8, 1987.*fn4 In addition to imposing the death sentence fixed by the jury,*fn5 the sentencing judge imposed a consecutive sentence of ten to twenty years imprisonment, on the robbery conviction. Appellant directly appealed the judgments of sentence.*fn6

The facts giving rise to this action begin on August 9, 1980, when at approximately 3:00 a.m., the police were summoned to investigate an alarm at the Pep Boys Auto Parts Store at 48th and Girard Avenue in Philadelphia, Pennsylvania. Upon arrival an officer, Alexander Stephens, discovered that the front window to the store had been broken. Subsequently the manager of the store, Bob McDonald, arrived and both went through the store to make sure everything was in order. Upon finding everything in order the police officer left and the manager then called the Franklin Glass Company to get the window boarded up for the night. At approximately 4:30 a.m., a William Linberry, an employee of the glass company, arrived at the store and began boarding up the broken window. Approximately 10 minutes later, while Mr. Linberry and Mr. McDonald were outside the store discussing the broken window, an individual crossed the street from the ARCO service station and asked what had happened. This man was carrying a yellow

[ 522 Pa. Page 538]

    bag and subsequently produced a hand gun and then stated to Mr. McDonald, "put the money in the bag." McDonald replied "what money" and with that, the man shot Mr. McDonald twice, killing him. The appellant was subsequently identified as the perpetrator of the robbery/murder and was arrested October 22, 1980, in Suffolk City, Virginia.

The appellant makes several allegations of trial error. However, before addressing the specific issues raised by the appellant, we must make an independent review of the record to determine whether the evidence was sufficient to sustain the convictions.*fn7 At trial Mr. Linberry identified the appellant as the person whom he saw shoot Mr. McDonald. He testified that after the appellant fired the first shot, he dove under his van and he then heard another shot. He testified that after he heard the appellant walk away, he called the police.

Another witness, a Ronald Johnson, testified that he was at the ARCO station across from the Pep Boys store on the morning in question, and that the appellant came up to him and two other boys that were at the ARCO station and told them to get out of there. He testified that the other boys ran across the street into Duram Park but that he only ran up the street and stopped and that from his vantage point he could still see the ARCO station and Pep Boys store. He testified that the appellant had a yellow bag and that he watched the ...


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