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COMMONWEALTH v. COONEY (08/06/68)

decided: August 6, 1968.

COMMONWEALTH
v.
COONEY, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Delaware County, March T., 1967, Nos. 401 and 402, in case of Commonwealth of Pennsylvania v. Carl Joseph Cooney.

COUNSEL

I. B. Sinclair, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 431 Pa. Page 154]

Carl Joseph Cooney was charged with murder, voluntary manslaughter and involuntary manslaughter arising out of the killing of Sylvia Jackson Cooney. He was tried by a jury and found not guilty of murder, but guilty of voluntary manslaughter. He has appealed from the judgment of sentence, which consisted of a fine of $500 and imprisonment for not less than four or more than eight years.

Cooney makes a number of contentions in this appeal. First, he contends that there was no testimony establishing passion, and therefore the jury could not find him guilty of voluntary manslaughter.

We shall summarize the evidence.

Cooney, a former police officer and State parole agent, was estranged from his wife, who was the mother of their three children. In 1963, he met the victim, Sylvia Jackson, and lived with her thereafter as man and wife, although they were never legally married. She was known as and represented by Cooney as his

[ 431 Pa. Page 155]

    wife, and bore a child by him who was six months of age at the time of her death. After living in California for a brief time, Cooney and Sylvia returned to live at the home of her parents in the City of Chester. On December 31, 1966, Cooney and Sylvia went to Philadelphia to attend a New Year's Eve celebration, where both had been drinking. They returned home at 4 A.M., rang the doorbell because neither had a key, and were let in by Sylvia's mother, Jennie Jackson. Mrs. Jackson testified that when she let the couple in, Cooney did not say anything, but "acted like he was mad." Cooney and Sylvia went upstairs to their bedroom, and shortly thereafter Mrs. Jackson, who was in an adjoining bedroom, heard Sylvia whisper, "Don't do that, don't do that, don't do that," which was immediately followed by three shots. Mrs. Jackson and her husband, Arthur Jackson, who was also in the adjoining bedroom and who also heard the three gunshots, ran into Sylvia and Cooney's bedroom and saw their daughter and Cooney lying on the floor. Jackson testified that he sat down on the bed and picked his daughter up in his arms "trying to make her live. I wanted to make her live." He further testified that Cooney, although continuing to lie on the floor, was conscious and had looked up at him. A gun, which was used in the shooting, and which was found on the bed approximately six feet away from Cooney, had been acquired by Cooney some years before in connection with his service as a policeman.

Cooney took the stand in his defense and testified that after coming home from the party he had gone into the bathroom, and upon returning to the bedroom found his wife holding the gun and pointing it at him. He said it "frightened me and I leaped at her -- like this -- for the gun." When he tried to yank the gun from her hand, the gun ...


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