Appeal, No. 172, Jan. T., 1949, from judgment and sentence of Court of Oyer and Terminer of Northumberland County, May T., 1948, No. 1, in case of Commonwealth v. Antonio Gidaro. Judgment and sentence affirmed.
Louis Cohen, with him Robert V. Moser, for appellant.
Michael Kivko, Assistant District Attorney, with him Harold F. Bonno, District Attorney, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE PATTERSON
Antonio Gidaro entered a plea of not guilty to an indictment charging him with the murder of Michael Matzura. The jury found him guilty of murder in the first degree and fixed life imprisonment as the penalty. Gidaro moved for arrest of judgment and a new trial. The motion was dismissed, after argument before the court en banc, and a new trial refused. Gidaro appeals.
The time of the offense was December 25, 1947, at about 7:00 p.m., and the place was Ashland Hill Road, Mount Carmel, Northumberland County, opposite a building owned by appellant, located on the south side of the highway. The western portion of the building was occupied by one Walter Frasch, lessee of appellant, as a gasoline filling station, and the eastern portion, consisting of a one-car garage, was used by appellant to store his car. Appellant had gone to the garage to get his automobile and, finding another car parked in front of the garage doors, he complained to Frasch, who backed it out of the way. Appellant was carrying a revolver at the level of the tenth rib, toward the left side of the men ensued between appellant and Frasch over the blocking of the garage doors. Attracted by the argument, Joseph Matzura, son of deceased, Mrs. Frasch and Robert Frasch, brother of appellant's lessee, all of whom
were inside the gasoline station, came outside, and as they did so appellant picked up an iron bar used to hold the garage doors open. Joseph Matzura picked up another iron bar. Michael Matzura, the deceased, then came out of the gasoline station and stepped between his son and appellant, stating that he did not want any trouble. Frasch took deceased by the sleeve, deceased stepped back out of the way, and Frasch and appellant resumed their argument. Deceased left the scene, walking in a northwesterly direction toward his home and Mrs. Frasch, Robert Frasch and Joe Matzura walked toward the service station. Suddenly appellant broke off the argument with Frasch and ran north across Seventh Street and fired three shots in the direction of deceased, who was walking slowly along the northerly side of the street, with his back toward appellant and his hands in his pockets. The second shot was fired from a distance of nine to ten feet away and the third from a distance of only six feet, after Matzura had doubled up and was falling to the ground. One of the three shots imbedded itself in a building on the north side of the street, but the other two found their mark in the body of deceased. One of these two shots entered the back of the right shoulder and passed through the body to emerge from the front of the right shoulder, without affecting any vital organ. The other shot, which proved to be the fatal one, entered the right lumbar vertebrae, three and one-half inches from the midline of the body, passed through the first lumbar vertebrae, then through the aorta, a large blood vessel of the body, severing it, then through the pancreas, nicking the transverse colon at the splenic fracture, and through the lateral attachment of the diaphragm, lodging in the lateral chest wall, at the level of the tenth rib, toward the left side of the body. Matzura died shortly after the shooting, while en route to a hospital, as a result of internal hemorrhage
due to the perforation of the abdominal portion of his aorta.
Appellant's defense was that he had no intention to shoot or kill Matzura and that the killing was purely accidental. He testified that Joseph Matzura had first picked up a bar; that he was frightened and proceeded toward his home; that his position was between Joseph Matzura and deceased; that he heard shots being fired; and that he shot his revolver without ...