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decided: March 18, 1975.



Alexander Hemphill, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., John H. Isom, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, Mark Sendrow, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring opinion in which Manderino, J., joins.

Author: Roberts

[ 461 Pa. Page 21]


In this appeal, appellant Kenneth Boyd presents a multifaceted attack upon the validity of his conviction of murder in the second degree. Boyd was tried before the court sitting without a jury on February 28, 1974. Post-verdict motions were filed but were later withdrawn. Appellant was sentenced to five to 20 years imprisonment. Subsequently, Boyd obtained new counsel and an appeal was mistakenly filed in the Superior Court and then properly in this Court. We remanded to the trial court for the filing of post-trial motions. Post-trial motions were filed accordingly and denied. This appeal ensued.*fn1 We affirm.

Appellant first contends that there was insufficient evidence to sustain a verdict of murder because the Commonwealth failed to establish that he acted with malice. The Commonwealth's evidence consisted almost entirely of appellant's statement to the police. Appellant related that he arrived at the clandestine gambling house where the shooting occurred at about 1:00 a. m. He continued:

"I sat down to watch the people who were still gambling in the dining-room. Then James Blount [the deceased] came in with 2 girls I never saw before. James started talking real loud with a guy who was already there. I don't know this guy's name. I asked the both of them to hold down the noise because the people who were gambling were making enough noise already. This guy James Blount called me out of my name. He said, 'Motherfucker, you been selling wolf tickets, it's about time for you to get straightened out.'

[ 461 Pa. Page 22]

Then the both of us started arguing. Then we started swinging at each other. While we were fighting my gun slipped from my waistband and fell to the floor. Then both of us started reaching for the gun at the same time. I got the gun and when we came up off the floor the gun went off. The gun landed on the steps going up to the 2nd floor. James was sitting on the sofa. Then I went and got the gun off the steps. James started sagging to the floor. People started asking was he shot, I said he wasn't shot. He was still moving and mumbling something. Then he fell to the floor. Then we started seeing the blood come out of his mouth. Lois [the proprietress of the gambling house] told me that he would have to get out of here. Then me and Fisher carried him out to his car that was parked in front of the house. When we came back inside, Lois said that we would have to get him from around her house. So I went to the car and got his keys out of his pocket and drove the car around the corner and parked it. I came back around to the house. . . ."

At trial, appellant's testimony was virtually identical to his statement except that he denied having control of the gun when the fatal shot was fired. Two eye-witnesses called by appellant substantiated appellant's story in most respects; however, they apparently did not actually see the shooting. Appellant contends that this evidence does not establish that he maliciously shot James Blount.*fn2

"To sustain a conviction of murder of either degree, the evidence must establish that the killing was committed with malice. Commonwealth v. McFadden, 448 Pa. 277,

[ 461 Pa. Page 23292]

A.2d 324 (1972)." Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974). "[Malice] consists either of an express intent to kill or inflict great bodily harm, or of a '"wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty"' indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963)." Commonwealth v. Chermansky, 430 Pa. 170, 175, 242 A.2d 237, 240-41 (1968). See Commonwealth v. Coleman, supra. "Legal malice may be inferred and found from the attending circumstances of the act resulting in death. Commonwealth v. Bowden, Pa., 309 A.2d 714 (1973)." Commonwealth v. Coleman, supra, at 510, 318 A.2d at 717; Commonwealth v. Chermansky, supra; Commonwealth v. Lawrence, 428 Pa. 188, 193, 236 A.2d 768, 771 (1968).

"Malice may be inferred from the use of a gun upon a vital part of the body, and the finder of fact is not required to ignore this inference merely because the defendant testifies that he did not intend to take a person's life. Commonwealth v. Gidaro, 363 Pa. 472, 70 A.2d 359 (1950)." Commonwealth v. Robinson, 452 Pa. 316, 323, 305 A.2d 354, 358 (1973). In Commonwealth v. Whitaker, 440 Pa. 143, 269 A.2d 886 (1970), Whitaker admitted shooting the deceased while the two were alone. "Whitaker testified that during the argument in the bedroom, Mrs. Childs [the deceased] obtained the revolver from a closet shelf and that as he tried to take it from her, it accidentally discharged. Despite Whitaker's testimony to the contrary, the jury was warranted in finding that he intentionally fired the shot which caused Mrs. Childs's death. And the jury could then also infer that he did so maliciously." Id. at 145-46, 269 A.2d at 887-88.

Here, appellant admitted in his statement that at the moment that the fatal shot was fired, he had sole

[ 461 Pa. Page 24]

    control over the gun. The trial court was entitled to infer from this fact and the fact that the gun was used upon a vital part of the body that Boyd acted maliciously.

The inference that Boyd acted with malice is also supported by appellant's failure to give aid to the victim after the shooting. In Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768 (1968), Lawrence and the victim fought when Lawrence refused to perform an act of homosexual sodomy upon the victim. As the victim prepared to rush Lawrence, Lawrence struck him with a blunt object and rendered him unconscious. Lawrence then dragged the unconscious body to a stream bed, apparently ripping the victim's clothing off in the process, and left him there, exposed to winter's elements. The Court concluded that malice was established.

"A blow to the head with a hardwood stick followed by a dragging of the victim for eighty feet and an abandonment of the unconscious, half-naked victim on a winter night in an isolated spot when he is breathing but bleeding profusely, is clearly sufficient to support an inference that the actor intended the death or great bodily harm of the victim or that the actor was recklessly indifferent to these ...

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