Robert E. Campbell, Public Defender, Gettysburg, for appellant.
Oscar F. Spicer, Gettysburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, Roberts and Manderino, JJ., concur in the result.
Appellant, Domingo Gonzales, was found guilty by a jury of voluntary manslaughter under section 2503 of the Crimes Code, 18 C.P.S.A. § 2503 (1973) stemming from an indictment charging criminal homicide and aggravated assault. Post-trial motions were denied and a sentence of 2 1/2 to 10 years imprisonment was imposed. This direct appeal followed.
Appellant first raises a question as to the sufficiency of the evidence to support the verdict. The testimony presented at trial revealed that there had been an altercation between appellant and decedent at the migrant labor camp where each man worked and lived. Although there were no witnesses to the actual shooting, appellant did not contest that he fired the fatal shot. Appellant contended that the shooting was in self-defense and that it occurred as the victim approached him with a knife. The Commonwealth's evidence indicated that the fatal bullet was fired from a distance of at least 12 feet, and no knife was located at the scene of the incident.
Appellant contends that under the testimony, the only theory that would justify the manslaughter verdict would have been a finding that he had acted under
an unreasonable belief that the killing was justifiable.*fn1 Proceeding from this premise he submits that the evidence establishes as a matter of law that his belief that he was in imminent danger of serious bodily harm was reasonable. Even accepting the original assumption, we cannot agree with this view of the testimony. The only evidence supportive of a theory of self-defense was the testimony of appellant which the jury was free to reject. Commonwealth v. Mahoney, 460 Pa. 201, 331 A.2d 488 (1975); Commonwealth v. Williams, 450 Pa. 158, 299 A.2d 643 (1973). Contradicting this testimony was the expert opinion that the bullet entered the body of the deceased at a point when it was at least 12 feet from the muzzle of the weapon. Additionally, no knife was found on the body nor was one retrieved from the area. This testimony obviously precludes a finding of self-defense as a matter of law and requires that the issue be submitted to the trier of fact as was done in this case. Reviewing the evidence in a light most favorable to the verdict winner, we find that the evidence supported the verdict. Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973).
Appellant next contends that a conflict in the testimony of the Commonwealth's expert witnesses regarding the ability to determine the distance from which the fatal shot was fired rendered such testimony inadmissible. Appellant bases this contention on the rule that the jury should not be required to guess between contradictory expert evidence offered by the same party. Menarde v. Phila. Transp. Co., 376 Pa. 497, 501, 103 A.2d 681, 684 (1954); Mudano v. Phila. Rapid Transit Co., 289 Pa. 51, 60, 61, 137 A. 104, 107, 108 (1927).
While this is a correct statement of the law, we must agree with the trial judge's determination that in this case no conflict existed among the testimony of the Commonwealth's two witnesses, one a police ballistics expert and the other, the county coroner (a medical doctor), who examined the decedent a few hours after death. At trial the ballistics expert testified that if the bullet hit the arm and then penetrated the abdomen his ability to compare the wound with the test shots performed on the murder weapon to determine the firing distance would be affected. Defense counsel's objection to this witness' opinion testimony regarding distance was sustained. In contrast the coroner was permitted to testify based on his familiarity with shotgun patterns and shotgun wounds and his examination of this wound and the residue, that the weapon was fired from a distance of about 12 feet. When questioned regarding deflection of the shot by the arm he stated ...