Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, No. 1893, in case of Commonwealth of Pennsylvania v. Hugh Clayton Durant.
Abraham T. Needleman and Needleman, Needleman, Taab & Eisman, Ltd., for appellant.
Bonnie Brigance Leadbetter and David Richman, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.
Appellant, Hugh Clayton Durant, was found guilty of murder in the second degree by a judge sitting without a jury. Post-trial motions were denied, and appellant was sentenced to a term of not less than two nor more than ten years in a state correctional institution. This appeal followed.
The Commonwealth presented its case principally through one Ethel Robinson, sister of appellant. Mrs. Robinson testified that prior to the shooting, she, four of her brothers, including appellant, her sister, two in-laws, and her boyfriend, the decedent, Lawrence Allen, had been drinking in a nightclub, where appellant
"may have gotten a little drunk." The party left the club at about 2:00 a.m., and after dropping off the rest of the group, Mrs. Robinson, the decedent and appellant returned to their residence, where all three lived. When the trio arrived at home, an argument broke out when Mrs. Robinson accused her brother's son (appellant's son) of being responsible for the pregnancy of her daughter. During the argument, appellant and the decedent became embroiled in a fist fight and the police were summoned to the residence to restore peace. After the police left, Mrs. Robinson and the decedent returned to their second-floor bedroom and began preparing for bed. Appellant ascended the stairs to his third-floor bedroom, and while the decedent and Mrs. Robinson were undressing, they heard a gunshot that sounded as if it came from the third floor. The decedent then left his bedroom to go to the bathroom on the second floor and soon after Mrs. Robinson heard another shot. She found the decedent lying in the hallway, bloody and unconsicous. She then saw appellant leaving the second floor and going up the stairs to the third floor.
Detective Grace, testifying for the Commonwealth, read appellant's statement, in which appellant admitted that during the fight with Mr. Allen, he broke loose and ran to his room on the third floor and got his 12-gauge shot gun. While trying to load the gun, it went off accidentally. He then reloaded the gun, returned to the second floor and walked over to the bathroom, at which time the victim turned toward him. Appellant then pointed the gun at the floor and fired, intending to frighten the decedent, but accidentally hitting him in an artery near the knee, causing his death.
At trial, appellant gave a different version of the homicide. He claimed he fired the gun on the third floor to scare the decedent and that when this had no
effect, he came downstairs with the weapon and asked the victim to leave the residence. He then claimed that the gun went off accidentally, ...