Com. v. Colbert

CourtUnited States State Supreme Court of Pennsylvania
Citation476 Pa. 531,383 A.2d 490
PartiesCOMMONWEALTH of Pennsylvania v. John COLBERT, Appellant. . Re
Decision Date26 January 1978

Page 490

383 A.2d 490
476 Pa. 531
COMMONWEALTH of Pennsylvania
John COLBERT, Appellant.
Supreme Court of Pennsylvania.
Reargued Nov. 15, 1976.
Decided Jan. 26, 1978.

Page 491

[476 Pa. 534] James J. Phelan, Jr., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine Stotland, Asst. Dist. Atty., for appellee.




The Court being equally divided, the judgment of sentence is affirmed.

JONES, former C. J., did not participate in the decision of this case.

EAGEN, C. J., filed an opinion in support of affirmance in which POMEROY and NIX, JJ., joined.

ROBERTS, J., filed an opinion in support of reversal in which O'BRIEN and MANDERINO, JJ., joined.


EAGEN, Chief Justice.

Appellant, John Colbert, was convicted by a jury of murder of the first degree for the killing of Andrew Banks. Post-verdict motions were denied and a sentence of life imprisonment was imposed as the jury directed. This direct appeal followed.

Colbert now advances numerous assignments of error in support of reversal of the judgment of sentence and the grant of a new trial. 1 For the reasons stated herein, I would affirm the judgment of sentence.

Page 492

[476 Pa. 535] On December 3, 1972, at approximately 9:39 p. m., Officers Leonard Mack and Luke Kirby of the Philadelphia Police Department responded to a call to investigate a disturbance at 1501 West Girard Avenue in Philadelphia. Upon their arrival at that address, the officers proceeded to the third floor apartment of Thomas Green where they found Andrew Banks lying in a pool of blood with a knife next to him. The officers removed Banks to Saint Joseph's Hospital where he was examined and pronounced dead. The [476 Pa. 536] cause of Banks' death was later established as a single stab wound of the chest. John Colbert was arrested in connection with this incident on December 4, 1972, at approximately 2:10 a. m. at 1140 East Phil-Ellena Street and was subsequently charged with Banks' murder.

The evidence at trial clearly established Colbert fatally stabbed Banks in the chest with a butcher knife. 2 The Commonwealth introduced, inter alia, two statements made by Colbert to the police in which he admitted the stabbing, and Colbert's own testimony at trial conceded this fact. There is a sharp conflict, however, between the testimony presented by the Commonwealth and that presented by the defense as to the circumstances which surrounded the killing.

An eyewitness, Joseph Cox, testified as a Commonwealth witness that the stabbing was completely unprovoked. However, he admitted Colbert had been drinking intoxicants before the incident and was "intoxicated" at the relevant time. 3

Colbert's defense, on the other hand, attempted to establish that the killing was committed while he was intoxicated and/or was committed in self-defense. Testifying in his own behalf, Colbert stated that he, Banks, Cox and others were drinking in a first floor apartment at 1501 West Girard Avenue for most of the day on December 3, 1972; they later went up to Green's third floor apartment and continued drinking. Colbert further testified that an argument developed[476 Pa. 537] between himself and Banks while they were on the first floor. The argument grew out of Banks' accusation that Colbert was "going with (Banks') girlfriend." According to Colbert, the argument flared up again in Green's apartment and during the course of the disagreement, Banks lunged at Colbert with a pocketknife. In retaliation, Colbert stabbed Banks with a kitchen knife he carried in his pocket. 4

The following issues were presented either orally or in writing to the post-verdict motions court and considered by it. Since the relevant events predated Commonwealth v. Blair, supra, I will consider them.

Colbert initially claims that the evidence established as a matter of law that a) he acted in self-defense and/or b) he was intoxicated.

As noted above, Colbert presented testimony to support a finding that Banks initiated

Page 493

the incident by lunging at Colbert with a pocketknife. Colbert also testified that Banks had attacked him on a prior occasion and had threatened his life "three or four times." In addition, testimony was introduced to show that Banks had a violent disposition. The Commonwealth, however, disputed Colbert's claim of self-defense. Specifically, the Commonwealth refuted Colbert's version of the stabbing with Cox's testimony and with the testimony of police witnesses which demonstrated that the knife Banks was alleged to have wielded against Colbert in Green's apartment was never found, despite a thorough search by the police. 5 Finally, Detective Donald Lyons [476 Pa. 538] testified during rebuttal that he had searched police records and found no indication Banks had ever been arrested.

Even assuming that the defense testimony was sufficient to warrant a finding that Colbert stabbed Banks in self-defense, the truth of this testimony was for the jury. The fact finders were free to accept or reject Colbert's version of the stabbing. Commonwealth v. Nau, 473 Pa. 1, 373 A.2d 449 (1977); Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975). Presented with a clear conflict in the testimony, the jury had a right to resolve the conflict against Colbert. Commonwealth v. Lowe, supra. Thus, Colbert's claim that the evidence established self-defense as a matter of law must be rejected.

Similarly, Colbert contends the evidence established intoxication as a matter of law and therefore, he argues, the jury should not have been permitted to return a verdict higher than murder of the second degree. 6 The Commonwealth did not refute the evidence showing Colbert had been drinking prior to the killing and while, from this evidence it could be argued that Colbert was intoxicated when he stabbed Banks, the Commonwealth vigorously disputed Colbert's contention that his drinking had so affected his mental capacity that it rendered him unable to formulate the specific intent to kill required to sustain a conviction for murder of the first degree. In addition to his own testimony that he had been drinking "wine, beer and whiskey" all day on December 3, 1972, Colbert's claim of intoxication is based on Cox's testimony that Colbert was "intoxicated" and the testimony of Cox's sister, Mae Hunt, that Colbert "could hardly stand up" when he arrived at her house at 10:30 p. m., approximately one hour after the stabbing occurred. The Commonwealth countered with the testimony of Detective Lyons, who arrested[476 Pa. 539] Colbert on December 4, 1972, at approximately 2:10 a. m., and testified that, although Colbert's eyes were bloodshot and he smelled of alcohol, Colbert had no difficulty walking, that his speech was not slurred or otherwise abnormal, and that he communicated in a normal, responsive manner. Finally, it is worth noting that Colbert during his own testimony did not profess to have been intoxicated, but rather purported to recall the stabbing and subsequent events quite clearly.

It is well-established that evidence of intoxication is relevant to the question of a defendant's capacity to possess the specific intent required to sustain a conviction of murder of the first degree. Commonwealth v. Haywood, 464 Pa. 226, 346 A.2d 298 (1975); Commonwealth v. Fostar, 455 Pa. 216, 317 A.2d 188 (1974); Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970). In the instant case, the question of Colbert's intoxication was in dispute, and since the jury was free to believe all or part or none of the evidence presented, Commonwealth

Page 494

v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975), this question was properly left for decision by the jurors, who resolved the issue adversely to Colbert. Commonwealth v. Padgett, 465 Pa. 1, 348 A.2d 87 (1975); Commonwealth v. Grello, 464 Pa. 250, 346 A.2d 543 (1975); Commonwealth v. Fostar, supra; see and compare Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968). Hence, Colbert's claim of error on this point should be rejected.

Colbert next challenges the admissibility of two Commonwealth exhibits, namely, the medical examiner's body receipt and certificate of search, which inventoried Banks' clothing and the items found as a result of a search of this clothing. Defense counsel objected at trial to the admission of these exhibits on the ground they were not properly authenticated. The record shows, however, that each of these documents was identified and verified as accurate by Officer Kirby, one of the officers who delivered Banks'...

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1 practice notes
  • Barbieri v. Shapp
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 3, 1978
    ...right of the people to elect judges of their choice. As this Court stated in Rogers v. Tucker, 443 Pa. 509, 517, 279 A.2d 9, 14 (1971): [476 Pa. 531] "We do not deny the right of the people to elect a Judge of their choice, we merely fixed, in accordance with the Constitution, the time of e......
1 cases
  • Barbieri v. Shapp
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 3, 1978
    ...right of the people to elect judges of their choice. As this Court stated in Rogers v. Tucker, 443 Pa. 509, 517, 279 A.2d 9, 14 (1971): [476 Pa. 531] "We do not deny the right of the people to elect a Judge of their choice, we merely fixed, in accordance with the Constitution, the time of e......

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