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COMMONWEALTH v. WARE (07/02/73)

decided: July 2, 1973.

COMMONWEALTH
v.
WARE, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1971, No. 250, in case of Commonwealth of Pennsylvania v. Marvin Ware.

COUNSEL

Benjamin A. Katz, for appellant.

Joseph C. Murray and Milton M. Stein, Assistant District Attorneys, 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 Eagen.

Author: Eagen

[ 453 Pa. Page 16]

This is an appeal from the judgment of sentence imposed on the appellant, Marvin Ware, after he was found guilty of voluntary manslaughter in a trial before a judge, sitting without a jury.

The prosecution emanated from a fatal stabbing in Philadelphia. The principal contentions on appeal are:

[ 453 Pa. Page 17]

(1) the evidence was insufficient to establish beyond a reasonable doubt Ware committed the stabbing; and (2) assuming the Commonwealth's evidence was sufficient to connect Ware with the stabbing then it also established Ware acted in self-defense, and, hence, the homicide was excusable.

In evaluating the merits of the foregoing contentions, it is fundamental the record must be read in the light most favorable to the Commonwealth. Commonwealth v. Miller, 445 Pa. 282, 284 A.2d 739 (1971), and Commonwealth v. Frazier, 411 Pa. 195, 191 A.2d 369 (1963). So read, the record discloses the following facts:

Ware was in a "speakeasy" at 152 N. Franklin Street in Philadelphia when one Julius McDonald, after telling a friend he was going to kill Ware, entered and proceeded to orally abuse Ware for remarks the latter allegedly made about McDonald's girl friend. When Ware admitted making the remarks, McDonald became incensed, pushed Ware down on a sofa and threatened to kill him. Fearing a disturbance, the proprietress requested both men to leave. Before leaving, McDonald turned to Ware and said, "You wait until I get back". After leaving the premises, McDonald stood on the front sidewalk "cussing" and calling for Ware to come out.

Ware exited shortly thereafter, but before leaving he borrowed a pocket knife with a three and one-half inch blade from a female friend who was present. Once outside Ware ignored McDonald and began a conversation with some friends on the sidewalk. McDonald then walked to the opposite side of the street and secured a thick stick, returned to where Ware was standing and struck him once over the head with the stick. A third party then ...


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