Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, June T., 1968, No. 23, in case of Commonwealth of Pennsylvania v. Joseph Baiardi.
J. Graham Sale, Jr., Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Carol Mary Los, Assistant District Attorney, with her Robert L. Campbell, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case.
Following trial by jury in the Court of Common Pleas of Allegheny County, appellant Joseph Baiardi was found guilty of murder in the second degree. Post-trial motions were filed but later withdrawn, and on July 7, 1969, appellant was sentenced to a 9 to 18-year term of imprisonment.
On May 13, 1970, appellant filed a petition for relief pursuant to the Post Conviction Hearing Act.*fn* The petition was dismissed after hearing, but appellant was granted leave to file motions for new trial and in arrest of judgment "nunc pro tunc". Such motions were filed, argued before a court en banc, and denied. This appeal followed.
Appellant presently contends (1) that the verdict was against the weight of evidence and (2) that the trial court committed several errors in its charge to the jury. Having reviewed the record, we conclude that neither contention has merit.
The largely uncontradicted evidence at trial revealed the following events: Appellant and the victim were married on March 8, 1968. A short time later there arose serious marital difficulties, as a result of which appellant began to drink. On the morning of May 2, 1968, the day of the shooting, appellant was drinking heavily. He went to his estranged wife's apartment to attempt to effect a reconciliation or, failing that, to commit suicide. The reconciliation effort proved fruitless, but instead of taking his own life appellant fatally shot his wife in the presence of three eyewitnesses. In the afternoon of the same day appellant voluntarily surrendered himself and the murder weapon to the police.
At trial appellant testified that he did not plan to kill his wife, that he did not recall shooting at her, and that he could not even remember how many shots he fired. He now argues that he was too intoxicated at the time of the killing to have acted with "malice", an essential element of the crime of murder. This argument must be rejected, for "[t]he law is quite clear that intoxication can lower the degree of guilt, but it remains
murder." Commonwealth v. Walters, 431 Pa. 74, 83, 244 A.2d 757, 762 (1968); see also Commonwealth v. Ingram, ...