Commonwealth v. Commander
Commonwealth v. Commander
Opinion of the Court
Opinion by
The defendant, Robert Commander, was indicted for murder and voluntary manslaughter, and, on another indictment, for involuntary manslaughter. The district attorney elected to try defendant only on the murder indictment. Defendant, while represented by counsel, waived a jury trial after the district attorney certified that defendant’s possible guilt would not rise
On May 10, 1968, at about 10 P.M., defendant, accompanied by James Barcley and an unnamed woman, entered a taproom in Philadelphia known as the Carolina Bar. Defendant was engaged in a conversation with the woman when Alton Page, the deceased, came over and slapped the woman on her buttocks. Page and defendant started arguing over Page’s action and a fight broke out between them. After the bartender asked them to leave, they continued their fist fight on the sidewalk in front of the barroom. After the fight was broken up by the patrons of the bar, Page announced that he was going home to get a “shiv,” which witnesses testified was a slang term for a knife. Barcley, who was in the barroom during the fight, testified that he did not see a weapon on the person of either man.
Page and his common-law wife, Thelma Page, then returned to their home, but only remained there for about ten or fifteen minutes. They then left for the 918 Bar, which is two blocks from the Carolina Bar. When they arrived at the 918 Bar, Page ordered a couple of beers and Mrs. Page went to the ladies’ room. Page was seated on the first stool at the bar with his back to the door, drinking a bottle of beer, when defendant appeared at the door.
According to the evidence, when defendant appeared at the door, Page made a motion “like he was going to
The testimony established, we repeat, that there was at least five feet separating defendant and Page, and that defendant had his back to the open doorway. There was no evidence that Page ever got off the bar stool. Equally, if not more important, the lower Court found that Page was not facing the defendant when defendant shot him, but was only turned half-way around “since the bullet entered his back in his right loin or flank,
There was testimony that Page customarily carried some kind of a knife, but Mrs. Page testified that he did not have one on the night of the murder. Carroll, who assisted Mrs. Page by driving Page to the hospital, testified that he did not see a knife in Page’s possession or on the floor after the shooting. The Commonwealth and defense counsel stipulated that no knife was found by the police in a thorough search (a) of the scene and (b) of Page’s clothing, and (c) of the hospital where Page was taken, or (d) at the morgue.
Defendant makes two contentions in this appeal: (1) There was not sufficient evidence to sustain a verdict and conviction of second-degree murder because of lack of proof (a) that he killed Page with malice aforethought and (b) that the killing was not in self-defense; and (2) that we should abrogate and change the rule in Pennsylvania that a prior inconsistent statement of a witness may be used only to impeach the witness, and may not be used as substantive evidence on the basic issue at trial.
Sufficiency of Evidence To Prove Malice Aforethought
In Commonwealth v. Gooslin, 410 Pa. 285, 189 A. 2d 157, the Court reiterated the oft-repeated definition of murder (pages 288-289) : “ ‘Murder in Pennsylvania was first authoritatively defined in the famous case of Commonwealth v. Drum, 58 Pa. 9, 15. “Murder”, Mr. Justice Stearns aptly said, in Commonwealth v. Buzard, 365 Pa. 511, 515, 516, 76 A. 2d 394, “is defined as an unlawful killing of another with malice aforethought, express or implied.” The legislature divided'murder into two classifications, murder in the first degree and murder in the second degree; and pro
“ ‘Malice express or implied is the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances. [Accord: Commonwealth v. Chermansky, 430 Pa. 170, 242 A. 2d 237; Commonwealth v. Lawrence, 428 Pa. 188, 236 A. 2d 768; Commonwealth v. Carroll, 412 Pa. 525, 194 A. 2d 911.]
“ ‘To summarize: If there was an unlawful killing with (legal) malice, express or implied, that will constitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental: [citing thirteen Supreme Court of Pennsylvania cases]; 4 Blackstone, Commentaries 192-193; 40 C.J.S. §13 p. 857, §20 p. 866, §21 p. 868; Wharton, Homicide §2 p. 2, §92 p. 112 (3rd ed. 1907);. Maurer, Pennsylvania Criminal Law: Murder §3582 p. 915 et seq., §3689 p. 953 et seq.; I Warren, Homicide §74 (Perm. ed. 1938); Clark & Marshall, Crimes §245 (4th ed. 1940).’” Accord: Commonwealth v. Carroll, 412 Pa., supra (page 530); Commonwealth v. Finnie, 415 Pa. 166, 170, 202 A. 2d 85; Commonwealth v. Ahearn, 421 Pa. 311, 317, 218 A. 2d 561; Commonwealth v. Lawrence, 428 Pa., supra (at pages 193-194).
In Commonwealth v. Finnie, 415 Pa., supra, we said (pages 171-172) : “ ‘In Commonwealth v. Tyrrell, 405 Pa. 210, 174 A. 2d 852, the Court said (pages 212-213) : “The essential difference in a non-felony murder-killing between murder in the first degree and murder in the second degree is that murder in the first degree requires a specific intent to take the life of another human being: Commonwealth v. Ballem, 386 Pa. 20, 123 A. 2d 728; Commonwealth v. Dorazio, 365 Pa., supra; Commonwealth v. Malone, 354 Pa., supra; Commonwealth v. Chapman, 359 Pa. 164, 58 A. 2d 433; Commonwealth v. Jones, 355 Pa. 522, 50 A. 2d 317; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823.”
“ ‘The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant’s words or conduct or from the attendant circumstances together with
With these important legal principles and standards to guide and govern us, we turn to defendant’s motion (a) in arrest of judgment and (b) for a new trial. Appellant-defendant argues that, because of the conflict in the testimony and the pretrial statements of Carroll and Barcley, there is insufficient evidence to prove beyond a reasonable doubt that he killed Page with malice aforethought. Considering the evidence in the light most favorable to the Commonwealth, as we must, there is abundant evidence to infer malice, and appellant’s contention on this point is utterly devoid of merit.
Self-Defense
Appellant-defendant next contends that there was sufficient testimony to establish self-defense as a complete defense to the murder indictment and, for this additional reason, his motion in arrest of judgment should be granted.
The principle of self-defense is clearly enunciated and thoroughly reviewed in Commonwealth v. Lawrence, 428 Pa., supra (pages 192-193) : “One is legally excused from taking another’s life if it is necessary to do so in order to prevent a felony such as sodomy attempted by force or surprise. See Commonwealth v. Emmons, 157 Pa. Superior Ct. 495, 43 A. 2d 568 (1945) ; 40 C.J.S. Homicide §101 (1944). One is also legally excused if he takes another’s life where it is
Appellant relies on the testimony that Page had been known for carrying a knife, and that their prior fight less than an hour before ended with Page hurling threats at him. He further relies on the testimony that as he appeared at the door of the 918 Bar, Page made
In Commonwealth v. Wilkes, 414 Pa., supra, the Court said (pages 249-250) : “Further, self-defense is an affirmative defense and the burden of proving it is upon him who asserts it by the preponderance of the evidence: Commonwealth v. Burns, 367 Pa. 260, 80 A. 2d 746 (1951), and Commonwealth v. Noble, 371 Pa. 138, 88 A. 2d 760 (1952). This burden never shifts. The Commonwealth is under no obligation to prove that the defendant did not kill in self-defense. See, Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823 (1935), and Commonwealth v. Updegrove, 413 Pa. 599, 198 A. 2d 534 (1964).” Whether or not defendant has met his burden of proof is strictly for the finder of fact to decide. See, Commonwealth v. Lawrence, 428 Pa., supra.
Defendant did not prove by a preponderance of the evidence that Page had a knife and was threatening to use it. To the contrary, Carroll and Barcley each testified in Court that he never saw the deceased pull out a knife, and Page’s wife testified that he did not have a knife on him on the night in question. Moreover, it was stipulated that no knife was ever found anywhere, after a thorough search by the police.
From a review of all the evidence, we agree with the lower Court that the appellant has clearly failed to establish by a preponderance of the evidence the essential elements of self-defense, or any legal justification for this homicide.
Prior Inconsistent Statements
The appellant urges this Court to change the long-established rule in Pennsylvania that prior inconsistent statements are admissible not as substantive evidence,
Judgment of sentence affirmed.
Christine testified that Carroll had told him that he saw Page draw from his belt a dagger eight to ten inches long and hold it in front of him before the shot was fired. Barcley’s purported statement to Christine was that from across the street he could see, through the open door of the 918 Bar, Page pull what looked to be a knife, something shining, just before the shot was fired.
Italies throughout, ours.
The writer of this Opinion, speaking for himself, finds no persuasive reason to change the long and well-established (by over a dozen cases) law of Pennsylvania concerning prior inconsistent statements, which we have recently reiterated. Wilson v. Pa. R. R. Co., 421 Pa. 419, 219 A. 2d 666; Bizich v. Sears, Roebuck & Co., 391 Pa. 640, 139 A. 2d 663; Dampman v. Pennsylvania R. R. Co., 166 Pa. 520, 31 A. 244; Commonwealth v. Deitrick, 221 Pa. 7, 70 A. 275; Scheer v. Melville, 279 Pa. 401, 123 A. 853; Zavodnick v. A. Rose & Son, 297 Pa. 86, 146 A. 455; Harrah v. Montour Railroad Co., 321 Pa. 526, 184 A. 666; Stiegelmann, Exrs. v. Ackman, 351 Pa. 592, 41 A. 2d 679; Kunkel v. Vogt, 354 Pa. 279, 47 A. 2d 195; Dincher v. Great Atlantic & Pacific Tea Company, 356 Pa. 151, 51 A. 2d 710; Commonwealth v. Blose, 160 Pa. Superior Ct. 165, 50 A. 2d 742; Herr v. Erb, 163 Pa. Superior Ct. 430, 62 A. 2d 75. See, also, Wigmore on Evidence, III, Third Edition, §1018; Henry, Penna. Evidence, §801 (4th Ed. 1953).
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