Appeal from judgment of sentence of Court of Common Pleas of Delaware County, March T., 1969, No. 774, in case of Commonwealth v. Alvin C. Gray.
Melvin E. Caine, with him Caine, Di Pasqua, Edelson & Patterson, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, with him Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Roberts joins in this dissent.
Alvin C. Gray, appellant, and one John Stephens were indicted in Delaware County for murder, voluntary manslaughter and conspiracy in connection with the fatal stabbing of Emanuel Brown on January 12, 1969, in Darby Township, Delaware County, Pennsylvania. Each was tried separately and Stephens, who was tried first, was acquitted of all charges. Thereafter, the trial of Gray commenced, with the jury ultimately rendering a verdict of guilty of second degree murder.*fn1 Motions in arrest of judgment and for a new trial was made and denied by order of court filed November 24, 1969. Gray was sentenced on December 5, 1969, to a term of seven and one-half to fifteen years' imprisonment. This appeal followed.
While the testimony of the various witnesses was contradictory, it appears to us that on the fatal date the appellant and Stephens were wandering on "foreign turf." They were met by decedent Brown and a Milton Gans and words were exchanged. Subsequently, ten to thirteen boys, led by the victim, began to chase and throw bricks at Gray and Stephens. Eventually, a hand-to-hand encounter ensued between the victim and Stephens. According to appellant's testimony, he later joined the fray and succeeded only in punching the victim while being knocked unconscious by a brick and waking up some distance away.
In support of his alternative motions, appellant advances six contentions: (1) the evidence was insufficient to sustain the verdict of second-degree murder;
(2) it was error for the trial judge to refuse to charge on self-defense or defense of another; (3) the trial judge placed undue emphasis upon the definition of the various degrees of murder, thereby prejudicing appellant; (4) it was error for the trial judge to refuse to charge that the previous acquittal of Stephens was evidence sufficient to impeach the credibility of an eyewitness; (5) the trial judge erred in ordering the closing argument to be made first by the appellant without a later opportunity to rebut the Commonwealth's later closing argument; and (6) the prosecutor should have been directed to call an eyewitness. The additional facts necessary for a complete understanding of these issues will be developed in this opinion.
In support of his first contention, appellant basically argues that the inconsistencies and variances among the Commonwealth's witnesses as to specific details demonstrate the insufficiency of the evidence upon which the conviction was based. However, variances in testimony or the fact that witnesses may have made contradictory statements goes to credibility and not to sufficiency. Com. v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969). "[I]n determining the sufficiency of the evidence, be it direct or circumstantial, the test is whether, accepting as true all of the evidence and all reasonable inferences arising 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: Com. v. Commander, 436 Pa. 532, 260 A.2d 773 (1970)." Com. v. Myers, 439 Pa. 381, 383-84, 266 A.2d 756 (1970). Accord, Com. v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970). Of course, the record must be considered and read in the light most favorable to the Commonwealth.
At trial, both Gray and Stephens unequivocally denied doing the stabbing and denied any possession of a
knife. On the other hand, while there was conflicting testimony by the Commonwealth's witnesses as to whether Stephens or Gray stabbed the victim, all agreed that Gray did have a knife. In any event, it was not necessary, under the circumstances, for the Commonwealth to offer proof which would exclude the possibility that Stephens alone committed the fatal stabbing in order to prove Gray's guilt beyond a reasonable doubt. Com. v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960). Viewing all the evidence presented, the jury could find not only that Gray stabbed the victim but also that he did so maliciously. Cf. Com. v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970); Com. v. Commander, 436 Pa. 532, 260 A.2d 773 (1970). Read in the light most favorable to the Commonwealth, we find the evidence sufficient to support a conviction of murder in the second degree.
Secondly, appellant alleges it was error for the trial judge to refuse to instruct on self-defense or defense of another. "The following conditions must be satisfied before one can successfully invoke the defense of self-defense: 17 P.L.E. Homicide §§ 45, 46; C.J.S. Homicide § 114. (1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing: Commonwealth v. Minoff, 363 Pa. 287, 69 A.2d 145 (1949). (2) The slayer must have reasonably believed that he was in imminent danger of death, great bodily harm, or some felony, and that there was a necessity to kill in order to save himself therefrom: Commonwealth v. Collazo, 407 Pa. 494, 180 A.2d 903 (1962); Commonwealth v. Miller, 313 Pa. 567, 170 A. 128 (1934); Commonwealth v. Russogulo, 263 Pa. ...