Thomas P. Ruane, Jr., R. W. Ziegler, Jr., Pittsburgh, for appellant.
Conrad B. Capuzzi, Dist. Atty., Uniontown, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Appellant Edward J. Caye was convicted by a jury of murder in the second degree for the shooting death of one Michael Daley. Post-trial motions were denied and a judgment of sentence of eight to twenty years of imprisonment
plus costs was imposed on August 4, 1974.*fn1 This direct appeal follows. Appellate Court Jurisdiction Act of 1970, July 31, 1970, P.L. 673, art. 11, § 202(1), 17 P.S. § 211.202(1) (Supp. 1974-75).
The principal issue raised in this appeal is the sufficiency of the evidence to sustain the verdict of murder in the second degree. More specifically, the issue presented is whether there was a sufficient basis on this record to find that the instant killing was with malice.
"'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, 240-41 (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 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 Page 101} v. Taylor, 461 Pa. 557, 559, 337 A.2d 545, 546 (1975).
See e. g. Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975).
The Commonwealth attempted to justify the verdict by relying on the inference of malice that normally may be drawn from the fact that a deadly weapon has been used upon a vital part of the body. While this inference is well recognized in our law it will not be permitted to support a finding of malice where the direct evidence presented in the Commonwealth's case proves the contrary. Accepting the testimony in a light most favorable to the Commonwealth as we must, Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973); Commonwealth v. Young, 446 Pa. 122, 285 A.2d 499 (1971); Commonwealth v. ...