No. 189 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Trial Division, June Term, 1977 No. 1209
Victor J. DiNubile, Jr., Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn*
[ 270 Pa. Super. Page 453]
The question raised in this appeal is whether appellant's responses during the plea colloquy sufficiently satisfied the requirement of a knowingly entered plea of guilt to murder of the third degree.*fn1 The plea was entered pursuant
[ 270 Pa. Super. Page 454]
to a plea agreement whereby the Commonwealth agreed to certify that the crime did not rise higher than murder of the third degree and further recommend a sentence of from eight to twenty years. During the course of an extremely thorough examination by the court, appellant express some hesitancy in conceding that the killing was a malicious one.
Third-degree murder includes any unlawful killing of a human being with malice, but where no intention to kill exists, or can reasonably or fully be inferred. Thus if there is an unlawful killing where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, but if no intention to kill can be inferred, either expressed or implied, from the facts, then the verdict should be guilty of murder in the third degree. Now, malice in murder of the third degree is the malicious design to do harm, but not to kill. Third-degree murder is, therefore, the unlawful taking of a human life with malice aforethought with no specific intent to kill, but with an intention to inflict grievous bodily harm, and not to take human life, but, as a result of the injury inflicted, death results.
Malice is the thing that the state distinguishes murder from any other type of homicide. Malice may be of two kinds; either direct malice, where there exists a particular ill-will against a particular person, or indirect malice as in the case of a crime committed with depravity of heart, wickedness of disposition, and indifference to social duty, hardness of heart, evil purpose, cruelty, recklessness of consequences, a reckless disdain for consequences of action, and a disposition of mind regardless of social duty.
If any person has so acted, he is regarded, in the eyes of the law, as having acted with malice.
Thus, as I said, malice is the thing that distinguishes murder from other types of homicide.
Now, do you understand that by pleading guilty you are admitting, on May 28, 1977, you did kill and slay John Viney. Do you understand that?
[ 270 Pa. Super. Page 455]
Q. Is that what you are admitting?
Q. Well, you have heard my reading of malice. Now, it can't be without malice if it is murder.
A. Well, I didn't quite understand it.
A. Your Honor, I say the answer is yes to what you asked me, but I thought you did say something ...