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COMMONWEALTH v. HEARD (04/12/67)

decided: April 12, 1967.

COMMONWEALTH
v.
HEARD, APPELLANT



Appeal from judgment of Criminal Court of Allegheny County, May T., 1964, No. 117, in case of Commonwealth of Pennsylvania v. Robert L. Heard.

COUNSEL

R. D. Reposky, with him H. David Rothman, for appellant.

Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Dissenting Opinion by Wright, J. Montgomery, J., joins in this dissent.

Author: Watkins

[ 209 Pa. Super. Page 453]

This appeal is from the judgment of sentence of the Court of Oyer and Terminer of Allegheny County. The appellant, Robert L. Heard, was indicted and tried on two counts, voluntary manslaughter and involuntary manslaughter; the jury convicted him of involuntary manslaughter and he was sentenced to pay a fine of 6 1/4 cents and undergo imprisonment in the Allegheny County Workhouse of not less than 9 months nor more than 18 months. The jury returned a verdict of guilty and therefore we must view the facts in a light most favorable to the Commonwealth.

Appellant, a police officer of the City of Pittsburgh, was off duty, in civilian clothes, in the Blue Bell restaurant

[ 209 Pa. Super. Page 454]

    with a woman companion at about 5:30 a.m., on Sunday, April 12, 1964. The restaurant is on Brighton Place in the City of Pittsburgh. Appellant and his girl were seated in the second booth drinking coffee and appellant overheard two men in the next booth using foul and vulgar language. He got up from his seat and became engaged in an altercation with the men about their language. The one man, Keally, said he was sorry but one, Frank Daley, became incensed when appellant told him "he better be sorry for using such bad language", and told appellant he was "a loser". Appellant asked him to go outside with him.

One Thomas Daley, a police officer for the County of Allegheny, also not in uniform, came up and pulled Frank Daley back, as a Mr. Gizzo grabbed Keally. Then a general fracas broke out. Appellant stepped behind the counter and attempted to exhibit his badge and drew his gun. He shouted for those involved to "hold it" or "I'm the boss". Appellant fired a warning shot high into the side wall and a few seconds later another shot was fired which killed Charles Mushinsky, who was not engaged in the fracas and was trying to leave the restaurant. The restaurant was small, 14 x 20 feet, with a row of booths on one side and a counter on the other. Most of the patrons present stopped for coffee after a night of drinking. Appellant was armed as required by police regulations of city policemen while off duty, but he was carrying a .25 caliber Ortgies semi-automatic pistol and not a regulation .38 caliber revolver as called for in the regulation.

Appellant contends the court below erred in admitting evidence of the type of weapon used by appellant and not instructing the jury to disregard this evidence as having no causal relationship to the victim's death.

The identification of the weapon which caused the death was a logical and necessary ...


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