Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Sept. T., 1971, No. 24, in case of Commonwealth of Pennsylvania v. Henry W. Tiernan, Jr.
Donald J. Goldberg, with him Edward F. Kane, for appellant.
William T. Nicholas, First Assistant District Attorney, with him J. David Bean and Stewart J. Greenleaf, Assistant District Attorneys, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.
Appellant, Henry W. Tiernan, Jr., was tried before a judge and jury and found guilty of voluntary manslaughter. Post-trial motions were denied and appellant was sentenced to a term of not less than two nor more than five years in a state correctional institution and ordered to pay a $1,000 fine. This appeal followed.
The Commonwealth presented its case through one Mrs. Margaret Garvin. She testified that between February of 1971 and May of 1971 she and appellant had engaged in various acts of intimacy in a local motel. In May of 1971, Mrs. Garvin began living with the victim, James Anderson, and had no further contact with appellant until August 21, 1971, the date of the homicide. On the day of the homicide, Anderson, Tiernan and Garvin happened to meet at the Tally Ho Motel, where the three drank and swam until they decided to leave. The three then proceeded to appellant's home in order that they might have a nightcap with appellant's wife, Barbara. Along the way, Anderson stopped for a package of cigarettes and returned to the automobile to find appellant and Mrs. Garvin kissing. At this point, Anderson pulled a revolver from his pocket and told Tiernan that he was going to kill him. Anderson then pocketed his revolver and re-entered the automobile and
stated that he was going to tell appellant's wife that appellant had been involved with Mrs. Garvin. At the apartment complex where appellant lived, Anderson ordered his companions out of the car at gunpoint and ordered appellant to give him the keys to appellant's apartment. Unable to find appellant's apartment on his own, Anderson ordered appellant to direct him to it. At first appellant did not cooperate, but after Anderson physically assaulted him, Tiernan led Anderson to his apartment. The three entered the apartment where Anderson immediately began to tell appellant's wife of the relationship between Mrs. Garvin and appellant. Mrs. Garvin and appellant told appellant's wife that the story was a lot of nonsense and the group quieted down and appellant's wife forced appellant into the bedroom. Here is where the stories of Mrs. Garvin and appellant differ.
According to Mrs. Garvin, after Mrs. Tiernan returned to the kitchen to make coffee, appellant came from the bedroom with his revolver drawn, causing the victim to draw his weapon, after which an exchange of shots took place. According to appellant, after his wife refused his request to call the police, and returned to the kitchen, he picked up his revolver and left the bedroom and entered the kitchen, where he was seen by the victim, who already had his weapon drawn. Appellant then shouted "drop it," but the victim refused and an exchange of gunfire took place, causing the death of Anderson.
Appellant first alleges that the evidence was insufficient to support the verdict in this case, because the Commonwealth, by its own evidence, proved that the killing was done in self-defense. In order for the killing to be done in self-defense, three elements must be present: (1) the slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing; (2) the slayer must have reasonably believed
that he was in imminent danger of death, great bodily harm, or some felony and that there was a necessity to kill in order to save himself; and (3) the slayer must not have violated any duty to retreat or avoid danger. See Commonwealth v. Johnston, 438 Pa. 485 (1970). Contrary to appellant's contention, the facts of this case, ...