Robert Davis Gleason, Johnstown, for appellant.
Ralph F. Kraft, Asst. Dist. Atty., Ebensburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., concurs in the result.
Appellant, Albert Nau, was convicted of murder of the third degree on May 12, 1975, in a non-jury trial before the Court of Common Pleas, Cambria County. Post-trial motions were denied and appellant was sentenced to a term of imprisonment for a period of two years to fifty-nine months. This appeal followed.
This case evolved from the slaying of Edward Nau on October 9, 1974, in Stonycreek Township, Cambria County. The pertinent circumstances surrounding the killing are as follows. The appellant and the deceased were brothers. They had worked together sporadically in the construction and mining businesses until about 1941. Apparently the relationship between the two brothers had always been volatile and during an altercation in 1941 over the purchase of a coal screen the deceased allegedly
struck the appellant.*fn1 The confrontation precipitated the sale by appellant of his interest in the coal mine, which he and Edward had operated together with another individual. After 1941, the appellant and his brother saw one another only on rare occasions, although they both continued to live in the Johnstown area. From the record and the findings of the trial judge it appears that on the day of the killing, October 9, 1974, the deceased, who was in his truck, and the appellant, in his automobile, passed one another at a slow speed near the intersection of Bedford Street and Annie Avenue in Johnstown, Pennsylvania. The appellant, as he passed his brother, shouted to him that he wanted to talk to him. (According to appellant he wanted to speak with him about their sister's social security check which his brother allegedly had taken.) Appellant testified that his brother called him an obscene name and then drove away. Believing that his brother had gone to his sister's house appellant then drove there in search of him. Not finding his brother at his sister's, appellant drove to Strayer & Co., in the Walnut Grove area of Johnstown, where he knew his brother rented a storage area. When he arrived, appellant's brother was in his truck talking with Robert E. Strayer, who was standing outside the truck door. Appellant drove past, made a U-turn, and parked in the parking lot diagonally from his brother's truck, but facing toward Bedford Street. The two vehicles were approximately twenty-seven feet apart. When the deceased recognized the appellant, he told Strayer that the man in the automobile was his "crazy brother" and "we're going to have a fight". Strayer testified that he saw the deceased pick up a hatchet from the floor and place it on the seat. Appellant apparently shouted something
at the deceased but Strayer was unable to hear what was said. After a few minutes deceased opened the door and started out of the truck. When the deceased reached the edge of the truck door the appellant shot him. At this time Strayer testified that appellant was standing a few steps from his vehicle, had both arms extended and was holding the gun in his hand. After the first shot, the deceased grabbed himself around the chest area and started staggering in a spinning motion towards the front of the truck while clutching his chest. He had nothing in his hands. When the deceased reached the left front headlight of the truck, the appellant fired a second shot. The deceased then staggered around the truck and fell on the opposite side. The appellant immediately left the scene.
Although he admitted firing the shots which killed his brother, appellant claims he did so because the deceased was advancing toward his automobile with the hatchet in his hand. Appellant testified that when he saw his brother climbing out of his truck with the hatchet, he became very "scared". He then reached in his glove compartment, grabbed his gun and jumped out of his vehicle. Appellant advanced five or six steps toward his brother's truck and fired two shots at his brother, who appellant thought was going to either hit him with the hatchet or throw it at him.
The pathologist who performed the autopsy testified the bullet causing death entered the right side of the deceased's body. The second bullet, which would not have been terminal, also entered on the right side and passed through the body. The pathologist was unable to determine which shot was fired first. From the autopsy report it can be concluded that the deceased was standing sideways in ...