No. 155 Special Transfer Docket, No. 156 Special Transfer Docket, Appeal from Judgments of Sentence imposed on September 1, 1977, by Judge Leonard Sugerman, of the Court of Common Pleas, Chester County, Pennsylvania. (Nos. 1200 C 1975 and 1362 C 1975)
Susan J. Gilhooly, Assistant Public Defender, West Chester, for appellant.
Janet L. Crawford, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn*
[ 271 Pa. Super. Page 414]
Ernest Lewis Marcocelli appeals following convictions of voluntary manslaughter and aggravated assault. He alleges several trial errors and an insufficiency of evidence to support the convictions. We disagree and, accordingly, affirm.
In determining the sufficiency of the evidence "the test is whether viewing the entire record in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt." Commonwealth v. Smith, 484 Pa. 71, 73, 398 A.2d 948, 949 (1979).
Appellant and Samuel Fazzini were neighbors who lived in adjoining homes on North Church Street, Downingtown, Chester County. For several years Fazzini and appellant had been quarreling, primarily about the condition of appellant's premises. On July 8, 1975, a verbal exchange took place, during which appellant threatened Fazzini with a stick. Anthony Fazzini, believing his son to be in danger, picked up a pipe and approached the quarreling neighbors. Appellant and Samuel Fazzini thereupon separated, with each retiring to his own home. A short time later, appellant emerged from the side door of his house carrying a shotgun. Fazzini also emerged and rejoined his father on the pathway in front of his house. After appellant had walked to the corner of his house, he fired three shots at the Fazzinis. Samuel Fazzini was killed, and his father was seriously injured.
Appellant contended that he had shot in self-defense. He testified that the decedent had started the argument and had pointed a gun at him. Appellant said that after he had entered his house, the decedent and his father continued to
[ 271 Pa. Super. Page 415]
threaten him; and, therefore, he armed himself with the shotgun and returned to the front yard. A pistol and spent cartridge were found lying near the body of the decedent. Eyewitnesses, however, did not observe that the decedent had a pistol or threatened appellant in any way prior to the shooting.
For a killing to be justified on the grounds of self-defense, the following elements must be present: "(1) the slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing; (2) the slayer must have reasonably believed that he was in imminent danger of death, great bodily harm or some felony, and that there was a necessity to kill in order to save himself therefrom; and, (3) the slayer must not have violated any duty to retreat or avoid the danger." Commonwealth v. Smith, supra, 484 Pa. at 76, 398 A.2d at 951. See also: Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977); Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975); Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970).
Where, as here, evidence is conflicting, it is for the trier of the facts to determine the credibility of the witnesses and the weight to be given the evidence. The jury is free to believe all, part or none of the evidence. Commonwealth v. Smith, supra. When the evidence is viewed in the light most favorable ...