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COMMONWEALTH PENNSYLVANIA v. GERALD R. MCCOMB (07/07/75)

decided: July 7, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD R. MCCOMB, APPELLANT



COUNSEL

David Zwanetz, Philadelphia, for appellant.

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

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Nix

[ 462 Pa. Page 506]

Opinion OF THE COURT

This is a direct appeal from the entry of the judgment of sentence of 2 1/2 to 12 years imprisonment imposed under a voluntary manslaughter conviction. The single question raised is the adequacy and accuracy of the trial court's further instructions to the jury on the issue of self-defense. The sufficiency of the evidence to support a conviction for voluntary manslaughter has not been raised.

[ 462 Pa. Page 507]

Gerald R. McComb, Appellant and Joseph Grosso, the deceased, had entered into an agreement which provided that the deceased was to care for appellant's dog for a stipulated weekly payment. Disagreement arose over a delinquency in the payment for the services performed by deceased. On February 17, 1973, the deceased confronted appellant, while he was in the course of his employment, and demanded the balance of the money that was then due him. The appellant promised that he would be able to pay the balance outstanding at 7:00 P.M. that evening. During this encounter, the deceased told the appellant that if he did not receive the money that evening he, the deceased, would fight for it.

Later in the afternoon of the same day, the deceased again met appellant by chance and demanded payment and threatened to drag appellant from the delivery truck on which he was working and take the money from him. Appellant then responded by stating that he had an ice pick, to which the deceased replied that if he (appellant) wanted to fight with weapons, he (deceased) would get a knife. At some point after this second encounter, appellant armed himself with a loaded revolver and then proceeded to finish making his deliveries.

At 7:00 P.M., the deceased, with two friends, drove to the place of appellant's employment. Appellant's employer, desirous of avoiding any difficulty within his store, suggested that appellant meet the deceased outside. The deceased left the vehicle alone. As appellant approached the point where deceased was standing, he withdrew a revolver from his pocket, firing twice, fatally wounding the deceased.

The appellant, in his statement to the police, attempted to explain his action by saying that he fired the weapon when the deceased approached him with something in his hand. Witnesses for the Commonwealth testified that no weapon was seen in the hands of the deceased at the time of the shooting.

[ 462 Pa. Page 508]

During the course of the jury's deliberations, they communicated to the court their desire to receive additional instructions as to the definitions of murder in the second degree and voluntary manslaughter and a further clarification of the law of self-defense. At the conclusion of the instructions ...


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