Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1959, No. 568, in case of Commonwealth of Pennsylvania v. Henry O'Neal.
John W. Packel, Assistant Defender, with him, Vincent J. Ziccardi, Acting Defender, for appellant.
James D. Crawford, Deputy District Attorney, with him Albert L. Becker and Carol B. Feldbaum, Assistant District Attorneys, 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. Mr. Justice Cohen concurs in the result.
On December 15, 1959, the appellant, Henry O'Neal, was convicted by a jury in Philadelphia of murder in the second degree. Post-trial motions were refused and on May 11, 1960, a prison sentence of four to ten years was imposed. No appeal was then filed.
In 1963, O'Neal was granted parole, but in July, 1968, following his arrest and conviction for another criminal offense, he was recommitted as a parole violator and is presently incarcerated under the sentence imposed in 1960.
Following proceedings instituted on September 23, 1968, seeking post-conviction relief, O'Neal was granted the right to file a direct appeal from the 1960 judgment of sentence as if timely filed. This appeal is now before us.
The record discloses that O'Neal was charged with fatally stabbing Wilbur Trapp in the back with a knife on April 11, 1959. At trial he plead self-defense. O'Neal's own trial testimony, which was corroborated to some extent by other testimony, tended to establish that Trapp had pursued him for some distance from a local bar, cornered him, and threatened his life with a knife, and that in order to save himself from death or great bodily harm, it was necessary for him to stab Trapp. If this testimony were believed by the jury in toto, O'Neal should have been acquitted. Moreover, even if the testimony were not completely accepted, and only certain material portions of it were believed by the fact-finding tribunal, the guilty verdict should have been that of voluntary manslaughter. However, there was substantial trial testimony which established that
the stabbing occurred while O'Neal was the aggressor, and after he pursued Trapp from the bar in order to avenge a friend whom Trapp had just cut with a knife during an argument in the bar. This testimony, if believed by the jury, amply warranted the conclusion that the stabbing was committed with malice and in the absence of provocation, excuse or necessity. Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970), and Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970). Hence, under the proof, the determination of the degree of guilt or lack of guilt was strictly for the jury under proper instructions from the court.
With the foregoing, O'Neal presently voices no disagreement. However, he does urge that in one important respect the court's instructions to the jury were incorrect, and were so confusing in general that a fair determination of the issues was precluded.
The specific portion of the charge, the correctness of which is challenged, is this: "[W]hen the Commonwealth makes out a case of felonious homicide against a defendant, the killing is presumed to be malicious and murder of the second degree until the contrary appears in evidence. If the Commonwealth seeks to prove that the killing amounts to murder of the first degree, it then has the burden of raising that crime from second degree to first degree murder, and it must do so by proof of factors establishing beyond a reasonable doubt the higher degree of guilt. On the other hand, if the defendant contends that the homicide is not murder of the second degree but only manslaughter, then the burden is upon the defendant to prove the essential facts which would reduce the crime to manslaughter, ...