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COMMONWEALTH v. LEE (01/19/73)


decided: January 19, 1973.


Appeal from judgment of sentence of Court of Common Pleas of Bradford County, Oct. T., 1970, No. 26, in case of Commonwealth of Pennsylvania v. Goldie Lee, Jr.


James A. Pruyne, W. Marshall Dawsey, and Duvall & Dawsey, for appellant.

C. Wayne Smyth, Assistant District Attorney, and Maurice L. Epstein, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 450 Pa. Page 153]

Appellant, Goldie Lee, Jr., was arrested on November 1, 1970, and charged with the murder of Hazel Guisewhite. At arraignment, on December 28, 1970, appellant entered a plea of not guilty to the charge. Thereafter, appellant filed pretrial motions challenging the petit jury array and requesting a change of venue.

[ 450 Pa. Page 154]

Both motions were denied on January 12, 1971; on that same date, appellant withdrew his plea of not guilty, and entered a plea of guilty, which was accepted by the court.*fn1

On January 13, 1971, after an evidentiary hearing conducted pursuant to Rule 319A of the Pennsylvania Rules of Criminal Procedure, the court ruled that the defendant's guilt could rise no higher than murder in the second degree. Upon further hearing, the court found appellant guilty of second degree murder. Post-trial motions were denied.

This direct appeal followed. Appellant at all times has been represented by counsel.

Appellant raises two issues: (1) that the trial court's finding of murder in the second degree was not supported by the evidence and, (2) that the trial court abused its discretion by sentencing the defendant to eight and one half to twenty years on the charge of murder in the second degree. We decide both issues adversely to the defendant.

In reviewing the sufficiency of the evidence to support a conviction, we must carefully scrutinize the entire record, viewing the evidence in the light most favorable to the Commonwealth. Commonwealth v. Young, 446 Pa. 122, 123, 285 A.2d 499, 500 (1971); Johnson Appeal, 445 Pa. 270, 273, 284 A.2d 780, 781 (1971). The crucial inquiry is to determine whether, on the whole record, a finder of fact could reasonably have found all elements of second degree murder.

The Commonwealth's evidence was as follows: On October 31, 1970, at approximately 7:00 P.M., appellant arrived at the Eastside Tavern in Bradford County. Upon entering, appellant took a seat at the bar, whereupon

[ 450 Pa. Page 155]

    he began to converse with one Reynolds, who was seated to appellant's immediate left. Moments later, Hazel Guisewhite, the victim, a previous paramour of appellant entered, and after a few moments, took the seat at the bar next to appellant, which Reynolds had now abandoned. The two began, what appeared to the Commonwealth's eyewitnesses to be, a normal conversation. No loud words were spoken, no anger detected and no fight ensued. The appellant in fact testified he bought the victim a drink. Moments later, appellant and the victim arose from their seats, now standing but two to four feet apart. Appellant then pulled a revolver from his pocket, backed up a few feet and fired, thereby mortally wounding Hazel Guisewhite. Appellant, still brandishing the gun, backed towards the door and fled.

To rebut this evidence, appellant took the stand. His testimony, in direct contradiction to that of three eyewitnesses, was that during the conversation with the deceased, she had threatened that before appellant left the tavern that evening, she and her new boyfriend, Reynolds, would attack and beat appellant. Now in fear, and with Reynolds allegedly advancing towards him, appellant arose from his seat and began backing towards the door. As a deterrent, appellant further testified that he drew a gun, which he regularly carried. By accident or instinct, the gun discharged. Still in fear, appellant fled.

Although appellant's testimony at the degree of guilt hearing was clearly offered for the purpose of establishing voluntary manslaughter,*fn2 it was obviously

[ 450 Pa. Page 156]

    found by the trial court to be incredible. Instead, the court chose to believe the testimony of the Commonwealth's eyewitnesses.

In reviewing the entire record, and considering the evidence in the light most favorable to the Commonwealth, we conclude that the evidence was sufficient to support the trial court's finding of second degree murder.

Appellant's second and final argument is that the trial court abused its discretion by imposing an eight and one-half to twenty year sentence.*fn3 We cannot agree. As this Court stated in Commonwealth v. Wrona, 442 Pa. 201, 206, 275 A.2d 78, 80-81 (1971): "Whether a trial judge imposed a proper sentence on a criminal defendant does not present a pure question of law [thereby making it reviewable], unless the sentence exceeds the statutorily prescribed limits or is such as to be constitutionally impermissible. In the usual case, the problem presents a mixture of law and fact. . . . [T]he sentence imposed on a person convicted of crime lies with one exception (where the conviction is for first degree murder following a jury trial) within the sole discretion of the trial court, and the sentence imposed will not be reviewed by an appellate court, unless it exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment." (Citation omitted.) See Commonwealth v. Marks, 442 Pa. 208, 210, 275 A.2d 81, 82 (1971).*fn4

[ 450 Pa. Page 157]

The penalty for murder in the second degree for the first offense is a term of imprisonment not exceeding twenty years and/or a fine of not more than $10,000. Act of June 24, 1939, P. L. 872, § 701, as amended, 18 P.S. § 4701. Appellant's sentence does not exceed this prescribed statutory limit nor is it so manifestly excessive "as to be constitutionally impermissible."*fn5

Accordingly, the judgment of sentence is affirmed.


Judgment of sentence affirmed.

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