Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1968, Nos. 1207 to 1209, inclusive, in case of Commonwealth of Pennsylvania v. Eugene Harris.
Nino V. Tinari, for appellant.
Milton M. Stein, Assistant District Attorney, with him Ivan Michaelson Czap, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Mr. Justice Jones took no part in the consideration or decision of this case.
In 1968, defendant-appellant, Eugene Harris, was convicted by a jury of voluntary manslaughter.
Early in the morning of April 1, 1968, Stanley Wybranski, a milkman, was shot and killed a few moments after he had delivered an order of milk to the unlocked vestibule of the first floor at an apartment house in Philadelphia. The apartment house has three floors, each of which houses tenants who use the front doorway
as a common entrance. The tenant in one of the first-floor apartments heard the sound of bottles striking together, then a noise that sounded like two gunshots being fired, and, finally, glass breaking. A police officer shortly thereafter arrived at the scene and discovered the decedent's slain body lying beside his milk truck. The officer followed the trail of decedent's blood to the outside steps of the apartment. As he entered the vestibule and hallway, defendant spoke from the second-floor landing, "I guess you will have to lock me up. I did it. I shot him." Defendant's daughter testified that when she awoke she heard gunshots and discovered her father at the second-floor landing with a gun in his hand, and that he told her that he had just shot a man.
Defendant testified that on the morning of the killing he saw and heard, from the landing outside his second-floor apartment, the front door to the apartment house rattling at the bottom of the stairway. Thinking the building was being burglarized, defendant got his gun and fired twice in the direction of the front door, although the door was not then shaking and no entry had been made. Defendant later went down the stairs and opened the front door and discovered the decedent's body lying outside, beside the milk truck. Defendant made no attempt to aid the victim or determine his condition.
Defendant's theory and defense was that he had a reasonable basis for believing that a burglar was breaking into the apartment house, and that he acted under the belief that it was necessary to shoot to prevent a serious felony and, consequently, for his own protection. He contends that under these circumstances he is entitled to a new trial, for his mistaken beliefs were such as to legally justify or excuse the homicide. We disagree.
A homicide committed to prevent a felony which is being attempted by force or surprise can, depending on the circumstances, be justifiable or legally excusable homicide. However, there must be a necessity for the killing and it must be committed under a bona fide and reasonable belief by the defendant that a felony is in process of commission. In Commonwealth v. Russogulo, 263 Pa. 93, 106 Atl. 180, the Court said (page 106): "The general rule of law is 'a bona fide belief by the defendant that a felony is in process of commission, which can only be averted by the death of the supposed felon, makes the killing ...