Appeal from judgment of sentence of Court of Common Pleas of Perry County, Feb. T., 1968, No. 1, in case of Commonwealth of Pennsylvania v. Kenneth C. Miller.
John J. Krafsig, Jr., for appellant.
Keith B. Quigley, Special Assistant Attorney General, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result. Former Mr. Chief Justice Bell and former Mr. Justice Barbieri took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones joins in this dissent.
Appellant was indicted for murder, voluntary manslaughter and involuntary manslaughter in connection with the fatal shooting of Edward Louden on March 11, 1968, in Watts Township, Perry County. After a jury trial, appellant was found guilty of second-degree murder. Post-trial motions were denied and the appellant was sentenced to a term of five to twenty years' imprisonment. This appeal followed.
The appellant provided the only eyewitness testimony concerning the homicide. His version of the fatal encounter was that the deceased, in the company of one George Miller, arrived at appellant's home -- a singleroom dwelling -- at approximately 9:30 on the night of the shooting. Shortly thereafter, George Miller departed,
leaving appellant and the deceased alone in appellant's home. Appellant testified that the deceased began drinking port wine which appellant had purchased earlier in the day, became intoxicated and threatened to kill appellant. During this diatribe, appellant was lying in bed but, upon hearing a click, which appellant interpreted as "breaking the gun," he arose and discovered the deceased rising from a chair with appellant's shotgun in his possession. Appellant allegedly grabbed the barrel of the shotgun, wresting it from the deceased's grasp, reversed the gun so that it was pointing in the direction of the deceased and attempted to apply the safety mechanism which necessitated fingering the trigger. At this point, the deceased allegedly shoved the appellant, causing him to fall backwards and, while appellant was falling, the gun discharged, fatally striking the deceased in the area of the chest.
In support of his alternative motions, appellant advances several contentions: (1) the evidence was insufficient to sustain the verdict of second-degree murder; (2) the court below erred in instructing the jury on self-defense; (3) appellant's confession was involuntary and, therefore, inadmissible; (4) the court below erred by stating its opinion regarding voluntary manslaughter; (5) appellant's case was prejudiced by the introduction of inflammatory photographs; (6) failure to record the voir dire examination of jurors deprived appellant of a meaningful appeal; and (7) the court below erred in instructing the jury that, should it return a verdict of guilty of first-degree murder, it would not be left to the jury to determine the sentence.
In support of his first contention, appellant relies on his own testimony, both in his confession and in his direct testimony, that the shooting was accidental, and that of a witness for the Commonwealth, who testified
that appellant, subsequent to the fatal shooting, stated to the witness that the killing was in self-defense. Appellant's argument relates to credibility, not sufficiency. ". . . [I]n determining the sufficiency of the evidence, be it direct or circumstantial, the test is whether, accepting as true all of the evidence and all reasonable inferences arising therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted." Commonwealth v. Gray, 441 Pa. 91, 94, 271 A.2d 486 (1970); Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970). Of course, the record must be considered and read in the light most favorable to the Commonwealth. Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971).
In this regard, it is well to note the differences between appellant's version as contained in his pretrial statement to the police and appellant's version as contained in his trial testimony. In his confession, appellant admitted that he turned himself in at the police station, "to turn in that I shot a man." He then proceeded to give the following account of the events surrounding the killing: "A. I got up and sat on the side of the bed. Miller had left. The longer [the deceased] sat the more he said that he would kill me and his brother, Ernest Roy Louden. I laid down with no covers on but I was awake. This is not the first occurrence that this has happened. He walked back into the kitchen again and sat at the table. I have three chairs over there. Then he started this procedure about killing my uncle and me. Q. Did he ...