Com. v. Wilson

• Decision Date: 06 August 1968
• Citation: 244 A.2d 734,431 Pa. 21
• Parties: COMMONWEALTH of Pennsylvania v. Marion WILSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 734

244 A.2d 734

431 Pa. 21

COMMONWEALTH of Pennsylvania v. Marion WILSON, Appellant.

Supreme Court of Pennsylvania.

Aug. 6, 1968.

Mitchell A. Kramer, Philadelphia, for appellant

Arlen Specter, Dist. Atty., Philadelphia, Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Division William H. Wolf, Jr. Asst. Dist. Atty., for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

This is an appeal, after jury trial and denial of post-trial motions, from the judgment of sentence of life imprisonment imposed by the Court of Oyer and Terminer of Philadelphia County. The facts are set forth in the opinion of the court below:

'At about 6:00 p.m. on Christmas day, 1964, Wakefield Conway, Jr., a 45 year old man, walking westwardly in the 2700 block of Park Avenue (in the area of Temple University) was stabbed six times by three youths. This 5 5 1/4 tall, and 131 lb. man fell backward, flat on his back. His wallet was emptied and thrown near his head. The youths fled. There was an abrasion on the left side of the victim's nose, and an abrasion on the right side of his forehead in two places. There were four stab wounds in the stomach area and two stab wounds of the upper right arm and right shoulder. The four stab wounds of the stomach involved a cutting of the small bowel in two places, a cutting of the stomach in two places, and a cutting of the liver and the aorta. The direct cause of his death was the massive fatal blood loss caused by the stab wounds of the stomach.

'He bled to death in the few minutes it took the police to arrive. Later, his wife and the father of the dead man went to the morgue and identified and claimed the body.

'The attack has been witnessed. It occurred in the full light of the illumination of a street light, thirty feet away. Two young girls had been almost directly across the street, less than fifty feet away, watching. Their view was unobstructed. One of these, Emma Holliday, age eleven, got a good look and recognized the assailants as three teenagers she knew very well from the neighborhood. The three robbers she identified were: Marion Wilson, Boise Wright, and Robert McSwain. She saw Marion Wilson actually stab the man.

'Emma Holliday and a girlfriend, Cynthia Jackson, had been running west on Seltzer Street toward the 2700 block of Park Avenue. They were running ahead of two boy companions who had stopped in the middle of Seltzer Street to pick up coins that had dropped. On reaching the southeast corner of Park Avenue and Seltzer Street the two girls stopped. Emma's attention was directed across the street, and, leaning over a hood of a car parked on Park Avenue, she looked and saw three young men encircle a man. One of the three boys, Marion Wilson, raised a shiny bladed knife in his hand and brought it down, stabbing the man. The man fell from his standing position onto his back. As this man (lay) motionless and quiet, Marion Wilson put his hands into the man's pockets and then put his hands back into his own pockets. Then Marion Wilson ran south on the sidewalk and ducked into an alley, following his two companions. Emma Holliday went home and told her mother and father what she had seen. Her father told her to forget about it and not tell anyone. The next night Emma told the police of what she saw.

'Emma Holliday had known Boise Wright for the past six years; she had known Marion Wilson and Robert McSwain for the past three years. All three lived in her neighborhood, which was the neighborhood of the murder. The three boys were friends and were always together. She had seen them about every day during the years she knew them.

'Mr. James Prescott, the step father of Robert McSwain, one of those identified by Emma Holliday, testified that his step son did live in the neighborhood during the years Emma said she knew him. He further testified that his step son, Marion Wilson and Boise Wright went to high school together and were all in the same class and that the three boys were always together everyday. Mr. Prescott testified that his step son and Boise Wright had been together for several hours during the late afternoon of Christmas Day, and that the last time that he saw them they were leaving a home that was approximately a block from the place of the murder--at about the time of the murder.

'When Cynthia Jackson, age 10, looked across the street with Emma Holliday she saw three boys 'around' some man. She then saw the man fall on his back. Her view across the street was unobstructed. She recognized one of the three boys as Boise Wright.

'She did not know Marion Wilson before this night, although she had some recollection of having seen him in the neighborhood before. She was not sure that Marion Wilson was or was not one of the two other attackers. She did, however, see that one of the other two boys was a darkskinned colored young man and he did wear his hair 'high' at the time of the attack.

'Robert Davis, age 14, and William Harris age 12, were the two boys who had been running on Seltzer Street with Emma and Cynthia. When they caught up to the two girls at the corner, the girls were leaning over a car looking across Park Avenue.

'When Robert Davis looked, he saw a man lying on the sidewalk across the street and three boys going through his pockets. Then he saw the three boys run south on the pavement and disappear into an alley. He testified that the three boys were of high school age.

'When William Harris looked across the street, he saw a man lying on the ground and three boys of high school age running away from the body and into an alley.

'Neither Robert Davis nor William Harris had known Marion Wilson, or even seen him before this night.

'The jury found the defendant, Marion Wilson, guilty of murder in the first degree and, after further deliberation, recommended a sentence of life imprisonment.'

Appellant lists eleven separate reasons why his conviction should be reversed. In support of his motion in arrest of judgment, he urges that the evidence is insufficient to convict where, of several witnesses, only one, Emma Holliday, can identify the defendant, and that one witness is of doubtful credibility. Appellant seems to ignore the fact that credibility is for the jury, and the jury resolved the issue against appellant. Nor can we say that no reasonable jury could have believed Emma. On the contrary, despite some inconsistencies in the details of her testimony, Emma at all times positively identified Marion Wilson as one of the assailants. Her testimony, believed by the jury, certainly is enough to support the verdict.

Several of appellant's arguments in support of his motion for a new trial relate to alleged prejudice against him on the part of the judicial machinery of the Commonwealth. We see absolutely no merit in any of these contentions. Appellant claims that the prosecution failed to investigate diligently the possibilities concerning his innocence. Yet he was unable to supply any information whatsoever to the District Attorney. We find this contention groundless.

Next appellant alleges that the court below was prejudiced against him, as evidenced by its participation in the examination and by its charge to the jury. With regard to the participation by the trial judge, appellant alleges that the court usurped the role of the prosecutor. Actually, the court was only fulfilling its proper function, by seeking to clarify answers and calm the youthful witnesses. Nothing was said in response to questions by the court by either of the witnesses appellant refers to that was not also stated in response to questioning by the District Attorney.

Nor do we find that the charge to the jury was prejudicial. We find no merit in appellant's claim that the charge as a whole was one-sided. Furthermore, the court did not err in instructing the jury that 'It's either first degree murder * * * or it's not guilty.' Appellant's objection to such a charge is twofold. He claims that this is an invasion of the jury's province of ascertaining the degree of guilt. However, this court stated in Commonwealth v. Chavis, 357 Pa. 158, 172, 53 A.2d 96, 103 (1947), quoting from Commonwealth v. Sheets, 197 Pa. 69, 79, 46 A. 753 (1900): 'An imperative instruction which takes from the jury their right to ascertain the degree is erroneous, but one which points out to them their duty under the law, but leaves them free to act, is not erroneous.' An analysis of the Chavis and Sheets opinions clearly reveals that the instant instruction was proper in merely pointing out its duty to the jury. The trial court did not remove the jury's right to ascertain the degee of guilt; on the contrary, it plainly told the jury what each of the possible verdicts was, and did not exclude the possibility of a verdict of guilty of murder in the second degree or of voluntary manslaughter.

The other objection to that part of the charge is that it assumed that the homicide was done in the perpetration of a robbery, foreclosing the possibility that the intent to rob was not conceived until after the stabbing. Despite appellant's assertion that 'there is little citable authority' on the question, his contention was treated directly and dismissed in Commonwealth v. Hart, 403 Pa. 652, 658, 170 A.2d 850, 853 (1961): 'Defendant's highly technical argument amounts to this: Unless the Commonwealth proves that the intention to commit a robbery was formed before the beginning of the fatal assault, the evidence cannot amount to a murder which was committed in the perpetration of a robbery. In other words, defendant would require a televised stop-watch in every robbery or felony-killing to prove that the felonious intent existed before the attack. * * *

'In Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906, defendant signed a confession in which he stated that after his victim had hit him in the chest he knocked him down with...