Louis G. F. Retacco, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Glenn S. Gitomer, Carolyn Engel Temin, Asst. Dist. Attys., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Eagen, J., concur in the result. Roberts, J., took no part in the consideration or decision of this case.
Appellant was arrested and indicted for the killing of one, Methuselah Abolition. After a trial before a judge sitting without a jury appellant was adjudicated guilty of murder of the second degree and of a violation of the Uniform Firearms Act, 1972, Dec. 6, P.L. 1482, No. 334, § 1 et seq., 18 C.P.S.A. 6101 et seq. Post trial motions were filed, argued and dismissed and sentence was imposed. This direct appeal follows.*fn1
We will first address appellant's contention that the evidence was not sufficient to sustain the verdict of murder of the second degree. Appellant contends that the testimony established a killing in hot blood and therefore a finding of voluntary manslaughter should have been returned.
Reviewing the testimony in a light most favorable to the verdict winner we are satisfied that this assignment
of error is without merit. The Commonwealth's testimony established that on April 14, 1973 in Father Divine's Mission cafeteria in Philadelphia, Methuselah Abolition, a caretaker in the mission, woke the appellant who was sleeping at one of the tables and asked him to leave. Appellant became quarrelsome and began to fight with Abolition, who was seventy-one years old and whose right arm had been amputated at the shoulder. Appellant struck Abolition with his fists until he was restrained by Calvin Alford, a patron of the cafeteria. Appellant broke from Alford's restraint and began backing towards the front door of the cafeteria as Abolition followed him carrying a stick at his side telling appellant to leave. When Abolition was six to eight feet from the appellant, appellant pulled a gun out of his pocket and fired at Abolition. Wounded in the leg, Abolition fell to the floor. Seconds later, appellant fired again this time into Abolition's stomach. Abolition died as a result of these gunshot wounds.
As has been often stated the distinguishing feature of murder is the presence of malice. Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975).
"In order to sustain a conviction of murder the element of malice must be established beyond a reasonable doubt. We have held that '[l]egal malice exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. It may be found from the attending circumstances, and, like the specific intent to kill, may be inferred from the intentional use, without legal excuse or justification, of a deadly weapon on a vital part of another human being.' Commonwealth v. ...