Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1970, No. 950, in case of Commonwealth of Pennsylvania v. James Walker.
Samuel Kagle, with him Jerome M. Charen, for appellant.
Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Nix concurs in the result. Dissenting Opinion by Mr. Justice Pomeroy.
Appellant, James Walker, was convicted of second degree murder after a non-jury trial and sentenced to five to fifteen years imprisonment.*fn* After the denial of
post-trial motions, this appeal was filed raising two contentions: (1) appellant established by a preponderance of the evidence that he acted in self-defense and was entitled to acquittal; (2) appellant's guilt could rise no higher than voluntary manslaughter. We find no merit in either claim and affirm the judgment of sentence.
The record establishes that: Appellant, the decedent Morris Lucas, Mrs. Marshall, and her nephew John Pugh resided together in Philadelphia. On the night before Thanksgiving in 1969, Mrs. Marshall heard loud shouting at 12:30 a.m. She came downstairs to the kitchen to find Lucas and appellant in argument. The two men began to fight until pulled apart by John Pugh. Lucas then told Mrs. Marshall he was going to get his clothes and leave. He then stepped out onto the rear porch.
Shortly thereafter, Lucas re-entered the kitchen armed with a knife and demanded that appellant drop his knife which was then in his pocket. After appellant responded and his knife fell to the floor, Lucas grabbed him and stabbed him in the side. The wound began to bleed but was not serious. Appellant then went upstairs.
On the third floor, appellant secured John Pugh's gun hidden in a drawer. As he walked downstairs, he took care to conceal the gun from John Pugh who was standing on the second floor.
Appellant returned to the kitchen with the gun to find Lucas standing and drinking a glass of water. Appellant immediately fired two random shots and then ordered Lucas to turn around and talk to him. Lucas turned exposing a knife in his hand. ...