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decided: April 28, 1970.


Appeal from judgment of sentence of Court of Common Pleas of Adams County, Oct. T., 1968, No. 12, in case of Commonwealth v. Karen Elaine Winebrenner.


F. Emmett Fitzpatrick, Jr., with him Joseph Michael Smith, for appellant.

Oscar F. Spicer, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones and Mr. Justice Pomeroy concur in the result. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Bell

[ 439 Pa. Page 75]

Thomas Winebrenner was shot and killed at approximately 7:00 o'clock on the night of Tuesday, August 20, 1968. A few hours after the killing, the victim's spouse, Karen Elaine Winebrenner, was arrested and charged with the murder of her husband. Her trial by a Judge and jury resulted in a verdict of guilty of murder in the second degree. Defendant, through her attorneys, then filed a motion in arrest of judgment and a motion for a new trial, each of which was denied. Karen Winebrenner was sentenced to undergo imprisonment for a term not to exceed twelve years. From the judgment of sentence she took this appeal.

Defendant contends (1) that the evidence was insufficient to prove her guilty of any crime charged, and (2) that the evidence was insufficient to prove malice, and (3) that her admissions proved that she shot in self-defense, and (4) that the Court committed reversible errors in its charge concerning self-defense. None of these contentions has any merit.

Before discussing the evidence and the contentions of the defendant, we think it would be helpful if we first considered several pertinent principles of law.

[ 439 Pa. Page 76]

In Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773, the Court said (pages 536, 537, 538-539): "'". . . 'Murder . . . is defined as an unlawful killing of another with malice aforethought, express or implied.' . . .

"'" Malice*fn1 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.] . . ."'

"The test for the sufficiency of evidence to support a murder conviction is likewise well settled. In Commonwealth v. Frye, 433 Pa. 473, 252 A.2d 580, the Court affirmed a conviction of murder, and said (page 481): 'It is hornbook law that the test of the sufficiency of the evidence -- irrespective of whether it is direct or circumstantial, or both -- is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85; Commonwealth v. Burns, 409 Pa. 619, 634, 187 A.2d 552; Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861; Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968).' See also, Commonwealth v. Terenda, 433 Pa. 519, 252 A.2d 635; Commonwealth

[ 439 Pa. Page 77]

    v. Lawrence, 428 Pa., supra; Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884. . . .

"'"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 all reasonable inferences therefrom, and may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being:*fn2 Commonwealth v. Tyrrell, 405 Pa., supra; Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65; Commonwealth v. Nelson, 398 Pa. 359, 152 A.2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317."'" Accord: Commonwealth v. Finnie, 415 Pa., supra.

All other kinds of murder, except murder which is perpetrated by means of poison or by lying in wait or by any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration of or the attempt to perpetrate certain statutorily enumerated felonies, are murder in the second degree. Act of June 24, 1939, P. L. 872, § 701, as amended, 18 P.S. § 4701. See, Commonwealth v. Ahearn, 421 ...

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