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COMMONWEALTH PENNSYLVANIA v. KIM LEE MYERS (06/13/79)

decided: June 13, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
KIM LEE MYERS, APPELLANT



No. 341 March Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of York County, Criminal Division, No. 374, 1976.

COUNSEL

John D. Flinchbaugh, Assistant Public Defender, York, for appellant.

Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 266 Pa. Super. Page 569]

The instant appeal comes to this court from appellant's conviction of involuntary manslaughter (18 Pa.C.S. § 2504). For the reasons stated herein, we affirm the judgment of sentence in the court below.

The facts giving rise to this appeal are as follows. On March 7, 1976, appellant was visiting at the home of his

[ 266 Pa. Super. Page 570]

    brother-in-law, Daniel Gilbert. Located in the mildly undulating countryside of Manheim Township, York County, the Gilbert home sits atop a gently sloping hill. Some 150 to 200 yards from the home, the hill reaches its base where the terrain again begins to slope upward thus forming a shallow valley. As the hill opposite the Gilbert home slopes upward, a small knoll appears which is to the right when viewed from the residence.

On the afternoon of March 7, appellant and Daniel Gilbert decided to engage in a little target shooting. They erected several targets at the bottom of the hill in the valley, then took positions in the garage and commenced firing through open windows. After a period of time, appellant tired of this sport and trained the scope of his .270 caliber high-powered rifle at a road sign approximately 500 yards away on the opposite hill. After firing four or five shots interspersed with a shot by Daniel Gilbert, appellant again took sight of the road sign and fired. He immediately exclaimed, "My, God, I think I hit that car." (N.T. 98). Appellant was in fact correct, for his bullet entered the rear window of a vehicle being driven by John Houck and struck his wife, Naomi, in the head; death was instantaneous.

Evidence at trial established that the Houcks had been traveling along Hobart Road. Standing in the Gilbert garage and facing the valley, Hobart Road is to the right. It descends past the Gilbert home until it reaches the valley. The road then crosses over to and ascends the hill opposite the Gilbert home. As it ascends, Hobart Road disappears behind the knoll; it reappears from behind the knoll part way up the hill, just at the road sign at which Naomi Houck was killed. Viewed from the garage, vehicles traveling Hobart Road are not visible during the time they are behind the knoll.

At trial, Trooper Boyle, the investigating state policeman, testified that during an interrogation, appellant stated that just before he fired the fatal shot "he saw a movement through the scope. He stated that he did not know what it was. He indicated it could have been a weed blowing." (N.T. 52).

[ 266 Pa. Super. Page 571]

Appellant was convicted of involuntary manslaughter in the death of Naomi Houck and sentenced to a prison term of nine (9) to twenty-one (21) months. After denial of post-trial motions, he brought this appeal alleging various assignments of error.*fn1

I

Appellant's first assignment is that the court below erred in denying his pre-trial motion to quash the information charging him in separate counts with third degree murder and involuntary manslaughter. Appellant claims that this was improper since involuntary manslaughter is not a lesser included offense in a murder charge, and the offenses therefore could not be joined in the same information. We find this argument to be without merit for two reasons. First, Pa.R.Crim.P. 228 provides that "[w]hen murder is alleged in an information no other counts may be joined in the information except voluntary and involuntary manslaughter." (emphasis added). Second, under the Crimes Code, involuntary manslaughter is a lesser included offense in a murder charge. Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (opinion by Pomeroy joined by Eagen, concurring opinion by Roberts joined by O'Brien); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (opinion by Roberts joined by O'Brien and Manderino, concurring opinion by Pomeroy); Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977) (opinion by Pomeroy joined by Eagen, concurring opinion by Roberts joined by O'Brien); Commonwealth v. Roberts, 484 Pa. 500, 399 A.2d 404 (1979).

II

Appellant's second assignment is that the court below erred in denying his demurrer to the third degree murder

[ 266 Pa. Super. Page 572]

    count and failing to direct a verdict on that charge. Appellant contends that this would have been proper since "there was no evidence presented that tended to show [his] guilt of murder." (Brief for Appellant at 5). Although acquitted on that charge, appellant claims prejudice in the lower court's ruling in that it permitted the prosecution to "pyramid" the charges thus encouraging the jury to bring in a compromise verdict on the involuntary manslaughter count. We conclude that the court below did not err.

Initially, we are guided by the rule that "[a] demurrer is properly granted only if the prosecution's evidence, including those reasonable inferences which may be drawn from it, is insufficient to support a jury's finding that the defendant was guilty beyond a reasonable doubt." Commonwealth v. Mitchell, 460 Pa. 665, 671-72, 334 A.2d 285, 288 (1975).

See Commonwealth v. Duncan, 473 Pa. 62, 373 A.3d 1051 (1977); Commonwealth v. Parrish, 250 Pa. Super. 176, 378 A.2d 884 (1977). A similar test is utilized in ruling upon a motion for a directed verdict. See Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Chapman, 255 Pa. Super. 265, 386 A.2d 994 (1978).

Instantly, appellant was charged with third degree murder. "Murder of the third degree . . . is an unlawful killing with malice expressed or implied, but absent any specific intent to take a life." Commonwealth v. Nau, 473 Pa. 1, 9, 373 A.2d 449, 452 (1977). The classic definition of malice was expressed in Commonwealth v. Drum, 58 Pa. 9, 15 (1868), as "not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty . . . ." See, e. g., Commonwealth v. Polimeni, supra; Commonwealth v. Coleman, 455 Pa. 508, 318 A.2d 716 (1974).

In light of the above definitions, we must conclude that the actions and statements of appellant were sufficient to support a verdict that he acted with malice in causing the death of Naomi Houck. When appellant exclaimed upon

[ 266 Pa. Super. Page 573]

    firing that he thought he had hit a car and subsequently informed Trooper Boyle that he saw a movement just before firing, the possibility was raised that appellant knew that unknown persons were in the vicinity of the road sign. Nevertheless, appellant fired his high-powered rifle across a road on which traffic was moderate and in an area in which an occupied farmhouse was adjacent to the road sign. Viewed in this light, the evidence would have been sufficient to establish that appellant acted with malice in firing the fatal shot. Cf. Commonwealth v. Coleman, 455 Pa. 508, 318 A.2d 716 (1974) (discharging gun on bus ignoring possibility that others may be in area); Commonwealth v. Micuso, 273 Pa. 474, 117 A. 211 (1922) (dictum) (discharging gun into crowd). The court below did not err in its ruling.

III

Appellant also claims that the evidence was insufficient to support his conviction for involuntary manslaughter.

"It is well settled that in passing upon the sufficiency of the evidence to sustain a criminal conviction, the evidence must be read in the light most favorable to the Commonwealth. Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Pride, 450 Pa. 557, 559, 301 A.2d 582, 583 (1973). Furthermore, the test of the sufficiency of the evidence is whether, accepting as true all the evidence and all the reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Stanley, 453 Pa. 467, 469, 309 A.2d 408, 410 (1973); Commonwealth v. Oates, 448 Pa. 486, 489, 295 A.2d 337, 338 (1972)." Commonwealth v. Thomas, 465 Pa. 442, 445, 350 A.2d 847, 848-49 (1976).

Involuntary manslaughter is the unintentional killing of another resulting from the doing of a lawful or unlawful act in a "reckless or grossly negligent manner . . . ." 18 Pa.C.S. § ...


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