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COMMONWEALTH v. SWANEY (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
SWANEY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Fayette County, No. 547 of 1971, in case of Commonwealth of Pennsylvania v. Earl Swaney, II.

COUNSEL

Simon B. John, Assistant Public Defender, with him Thomas P. Ruane, Jr., Public Defender, for appellant.

Gerald R. Solomon, Assistant District Attorney, and Joseph E. Kovach, District Attorney, submitted a brief for the Commonwealth.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: O'brien

[ 445 Pa. Page 245]

On October 21, 1970, after having a number of drinks, appellant, Earl Swaney, II (Earl Junior), returned to his parents' home, where he and the three children of his first marriage had been living after he separated from his second wife. Seriously troubled, financially and personally, because he was unable to afford a separate home for himself and his second wife and the child of their marriage, and she refused to live with him in his father's home, appellant immediately began to argue with his father, Earl Swaney, I (Earl Senior). The argument finally ended when appellant shot Earl Senior in the head. State Trooper Daniel Sochko, an old friend of the Swaney family, who had, surprisingly enough, witnessed the whole argument,

[ 445 Pa. Page 246]

    served as the principal witness at the degree-of-guilt hearing held after appellant had pleaded guilty to a general charge of murder. This case comes to us on direct appeal after a three-judge panel found appellant guilty of second-degree murder and sentenced him to a term of imprisonment of not less than ten nor more than twenty years.

Appellant raises only one issue on appeal: whether the evidence was sufficient to support a finding of second-degree murder rather than manslaughter.

Officer Sochko's testimony established that, while the officer sat watching "Johnny Cash" on television, appellant, grabbing his father's shirt, began demanding payment for his interest in bonds which he had once turned over to his father. As the argument picked up tempo, appellant, shouting or screaming loudly, threw an ashtray across the room. Officer Sochko, still watching "Johnny Cash," could not make out all of the other issues discussed at that time, but did remember that appellant next threw a coffee table across the room. Although the officer did intervene to separate son from father, at the request of appellant's mother, he soon returned to "Johnny Cash."

Meanwhile, appellant disappeared for a moment and returned clutching a shotgun, but since he was shouting "I'm not gonna shoot anybody," Officer Sochko, noticing that the gun wasn't loaded, continued watching television while appellant left the room again. When appellant returned, still clutching the gun, Officer Sochko noticed that the gun was now loaded. Nevertheless, since appellant continued protesting repeatedly that he wasn't going to shoot anybody, Officer Sochko remained glued to the TV, even when appellant threw the loaded gun across the room into the entranceway. The gun lay where it was thrown for a few minutes while appellant, apparently calmed down,

[ 445 Pa. Page 247]

    made a telephone call, and the officer and appellant's father ...


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