Appeal from judgment of Court of Common Pleas of Dauphin County, No. 182 of 1969, in case of Commonwealth of Pennsylvania v. John R. Conner.
William H. Saye, Assistant Public Defender, for appellant.
Marion E. MacIntyre, Assistant District Attorney, with her LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones concurs in the result. Concurring Opinion by Mr. Justice Roberts.
In a jury trial on an indictment charging murder, John Robert Conner was convicted of voluntary manslaughter. This appeal is from the judgment of sentence.
From the trial testimony of the witnesses called by the Commonwealth, the jury could find the following facts.
About 1 a.m., on December 4, 1968, Conner, while seated in his automobile, observed his estranged wife and John Ardelean about to enter a house in Harrisburg wherein the latter resided. Conner left the automobile and confronted the two on the porch of the dwelling. A physical altercation between Conner and Ardelean ensued on the porch and continued on the sidewalk in front of the house. During this latter period of the fight, Ardelean fell to the pavement and, while he was lying thereon, Conner kicked him several times in the area of the face. Conner then left the scene in his automobile. After visiting residences of two friends whom he told he had just beaten Ardelean,*fn1
Conner changed the license plate on his automobile and fled into an adjoining county where he was subsequently apprehended.
The police arrived at the scene of the fight shortly after its occurrence and found Ardelean lying prostrate on the sidewalk and immediately arranged his transfer via ambulance to a hospital where he was pronounced dead on arrival. An autopsy evidenced death resulting from "hemorrhage surrounding the brain" and "hemorrhage into the ventricular system" caused by several "violent" traumas to the head.
In defense, Conner testified at trial that he and Ardelean had been friends for years; that on the occasion involved upon seeing his wife and Ardelean in front of the latter's residence he walked to the porch of the dwelling and asked, "What's going on," whereupon Ardelean ordered him off the porch and kicked him in the leg; that a wrestling encounter and an exchange of blows with fists followed, during which both combatants fell down "two or three" concrete steps to the sidewalk in front of the house; that the melee continued on the sidewalk during which each tripped the other causing the other to fall; and finally he tripped and pushed Ardelean, and as Ardelean fell his head struck the side of an automobile parked in the street. He denied kicking Ardelean.
It is first argued that the evidence was insufficient to establish the crime of voluntary manslaughter, specifically the presence of an intent to kill.*fn2 This position completely overlooks the significance of the testimony offered by the Commonwealth that ...