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COMMONWEALTH v. TONEY (07/02/70)

decided: July 2, 1970.

COMMONWEALTH
v.
TONEY, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1968, No. 1893, in case of Commonwealth of Pennsylvania v. Gordon Toney.

COUNSEL

Nelson J. Romisher and Jules Mazis, for appellant.

Joel S. Moldovsky, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Eagen

[ 439 Pa. Page 175]

This is an appeal from the judgment of sentence imposed upon Gordon Toney following his conviction of murder in the second degree after a trial by jury.

The sufficiency of the evidence to sustain the conviction is not questioned, but we have examined the record and it readily discloses more than ample evidence to sustain the jury's verdict. From the trial testimony of a disinterested eyewitness, the jury could find that Toney shot Lionel Chandler, who was unarmed, on a public street in Philadelphia without provocation or an iota of necessity. Three bullets entered Chandler's body; one in the front upper chest, another in the right thigh and the third in the left knee. The bullet entering Chandler's body through the chest pierced a lung and his heart, resulting in almost instantaneous death.

In contradiction to the testimony of the Commonwealth's witnesses, which, we repeat, included that of a totally disinterested eyewitness, Toney testified that he shot Chandler after the latter had threatened to "punch your [Toney's] time clock" and "lunged towards me with his hand in his pocket."

It is first contended that the trial judge committed error in failing to adequately instruct the jury on the law of self-defense. Assuming that such an instruction was required under the evidence, it is patently clear that the charge, when read in its entirety, was more than adequate in this respect. Appellant's counsel submitted several points for charge which the trial judge approved and read word for word to the jury.

[ 439 Pa. Page 176]

These points were as follows:

"Number twelve: All homicides are not necessarily punishable as murder or manslaughter. There are circumstances under which the killing of a human being may be excused. One such circumstance is where the killing takes place under a reasonable apprehension that one's life is in danger and that the killing is necessary to prevent death or great bodily harm. That is the defense offered by the defendant in this case. His contention is that he wanted to talk to the decedent, that he knew that the decedent had a reputation for being a violent person, that he further believed that the decedent would be surrounded by his friends of similar reputation. The defendant further states that he was ...


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