Abraham T. Needleman, Needleman, Needleman, Tabb & Eisman, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, Maxine J. Stotland, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. of Law for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which Jones, C. J., and Eagen and Manderino, JJ., join.
Appellant, Joe Taylor, Jr., was charged with murder, involuntary manslaughter and operating an automobile under the influence of alcohol in the death of fourteen-year-old Herbert Palmer. Trial was had before a judge sitting without a jury which resulted in a finding of murder in the second degree. Appellant was also convicted of operating an automobile under the influence of alcohol. Post-trial motions were filed and subsequently denied. A sentence of ten years probation was imposed on the murder charge and a term of from eleven and one-half to twenty-three months imprisonment (with work release recommended) on the bill charging appellant with operating a motor vehicle under the influence of alcohol. These appeals follow.
The sole issue presented in the instant appeal is whether the evidence was sufficient to sustain a conviction of murder in the second degree. The crux of the disagreement is whether the evidence established the malice necessary to sustain a verdict of murder.
"'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, 292 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,
-41 (1968). See Commonwealth v. Coleman, supra. '[The existence of legal malice may be inferred and found from the attending circumstances of the act resulting in the death. Commonwealth v. Bowden, Pa., 309 A.2d 714 (1973).' Commonwealth v. Coleman, supra, 455 Pa. at 510, 318 A.2d at 717; Commonwealth v. Chermansky supra; Commonwealth v. Lawrence, 428 Pa. 188, 193, 236 A.2d 768, 771 (1968)." Commonwealth v. Boyd, 461 Pa. 17, 22, 334 A.2d 610, 613 (1975).
And the test of the sufficiency of the evidence is:
"'[w]hether, accepting as true all the evidence and all [the] reasonable inferences therefrom upon which if believed the [finder of fact] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes for which he has been convicted.' Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). In this regard it must be noted that the finder of fact has the right to reject part or all of the defendant's testimony even if uncontradicted. Commonwealth v. Chermansky, 430 Pa. at 174, 242 A.2d at 240." Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974).
On June 30, 1972, at approximately 3 P.M., two young boys, one age 14, the deceased herein, and his 13-year-old companion, were struck by an automobile while riding their bicycles in the Fairmount Park area of the City of Philadelphia. The deceased, Herbert Palmer, along with Ronald Beatty and another friend, were leaving a recreational facility provided by the city known as John B. Kelly Pool. They were proceeding on their bicycles to the park area. They arrived at the intersection ...