Harold Gondelman, Richard H. Martin, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, for appellant.
Albert M. Nichols, Dist. Atty., R. G. Weisgerber, Greensburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, and Manderino, JJ. Pomeroy, J., filed a dissenting opinion.
Appellant, Frederick Gerard Mahoney, was convicted by a jury of voluntary manslaughter. Post trial motions
were denied and a sentence of one and one-half to six years imprisonment was imposed. This direct appeal followed. The sole issue is whether the evidence supports the finding of voluntary manslaughter or whether, on the contrary, it establishes that the shooting was an act of self-defense.
The record read in the light most favorable to the Commonwealth discloses the following pertinent facts:
On October 28, 1971, at approximately 2:00 a. m., the decedent, William Masser, and his estranged wife, Jean Masser, were conversing in the living room of the latter's apartment. The appellant knocked on the door of the apartment and called out "Jean . . .", whereupon Masser rushed from his seat, opened the door, and commenced punching Mahoney about the face. Mahoney tried to flee, but slipped enabling Masser to further the onslaught. No attempt was made by the appellant to strike Masser, rather he merely sought to protect himself. Eventually, Mahoney was able to escape and fled outside to the parking lot where he had parked his automobile. Masser, after first returning to the apartment, followed Mahoney outside. While Mahoney sat in his automobile, Masser crouched down at the driver's seat of the vehicle and began pounding on the vehicle with his hands. Masser than moved around the automobile and stood up near the headlight on the passenger's side. Mahoney reached under the seat of his automobile and grabbed a gun, which he kept for security purposes, and, after warning Masser to leave him alone, fired a shot. Apparently enraged by this shot, Masser moved towards a dog pen approximately twenty feet from the vehicle and picked up a concrete block weighing between forty and fifty pounds. Mahoney attempted to back his automobile around in order to leave the parking area, but struck a tree and the vehicle stalled. Mahoney then perceived Masser coming directly towards him carrying the concrete block at shoulder level. Without breaking
stride, Masser lunged toward the vehicle with the concrete block and, simultaneously therewith, Mahoney fired three shots in rapid succession. The concrete block smashed through the window on the driver's side and landed in the driver's seat. Masser, mortally wounded by the final shot,*fn1 slumped to the ground just outside the door of the vehicle. The appellant made no attempt to flee and remained at the apartment building where he was apprehended by the police.
It is fundamental that the killing of another human being without justification or excuse is felonious homicide. Commonwealth v. Wucherer, 351 Pa. 305, 41 A.2d 574 (1945), and 4 Blackstone Commentaries, 188 (1898). However, a killing is not ...