No. 175 March Term, 1977, Appeal from Judgment of Sentence, after denial of post trial motions filed Nunc Pro Tunc, dated May 12, 1977, in the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Division, at Criminal Action No. 295 of 1974
Ferdinand Matlock, I. P. P., for appellant.
Gerald R. Solomon, Dist. Atty., Uniontown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., concurs in the result. Roberts, J., filed a dissenting opinion.
This is a direct appeal from the judgment of sentence of murder of the second degree entered July 8, 1977 in the Court of Common Pleas of Fayette County. The evidence introduced by the Commonwealth discloses the following: Appellant had been separated from his wife for several months. Since the separation, his wife had been seeing another man, the victim, Wayne Stermack. On May 13, 1974, appellant was drinking in a bar when witnesses overheard him remark that he "was going over to see his wife and the guy sleeping with her and was going to blow them away." Appellant then went to his wife's house, and entered, whereupon his wife and the victim ran outside the house. Appellant pursued Stermack and shot him twice in the back of the head. Death was immediate.
At trial, two witnesses testified that, shortly after the shooting occurred, appellant remarked to them that he had just shot his wife's boyfriend in the head and that he was looking for his wife to shoot her next. Within an hour of the shooting, appellant turned himself in to the state police, and voluntarily gave an oral statement to a state trooper who transcribed the statement. Appellant's statement admitted shooting Stermack and attempting to shoot his wife.
The only evidence offered in appellant's behalf was his own testimony. He denied making any of the incriminating
statements and claimed the shooting was in self-defense. He asserted that the victim (who was found with a gun in his pants pocket) reached for a gun in his shirt and that he (appellant) fired in self-defense. He further explained that the bullets lodged in the back of the victim's head because the victim turned his head as he reached for the gun in the shirt. Notwithstanding the self-defense assertion, the evidence against appellant was overwhelming.
The two issues raised in this appeal have been generated by the trial court's instruction to the jury. The trial court instructed the jury that they could return one of four possible verdicts: acquittal, murder of the first degree, murder of the second degree or voluntary manslaughter. The instruction as to murder of the first degree is not here at issue. However, as to murder of the second degree, the trial judge stated:
"[e]very case of murder that is not of the first degree is necessarily of the second degree. Murder of the second degree is an unlawful and malicious killing, but where no intent to kill exists or can reasonably be inferred from the circumstances. In all cases of murder where no intention to kill can be inferred or ...