decided: December 21, 1979.
COMMONWEALTH OF PENNSYLVANIA
CHARLES L. MCGUIRE, APPELLANT
No. 224 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Pennsylvania, Criminal Division, on April 18, 1975 at No. CC7403690A
Lester G. Nauhaus, John H. Corbett, Jr., Asst. Public Defenders, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Jacqueline M. Verney, Leo M. Dillon, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino and Pomeroy, JJ., did not participate in the decision of this case. Eagen, C. J., concurs in the result. Roberts, J., files a dissenting opinion. Larsen, J., files a dissenting opinion.
[ 487 Pa. Page 209]
Appellant, Charles McGuire, was charged with murder, voluntary manslaughter, and involuntary manslaughter for the fatal shooting of his seventeen year old son, Darell. On
[ 487 Pa. Page 210]
motion of the prosecution the court dismissed the charge of involuntary manslaughter. Appellant was tried without a jury and found guilty of murder in the third degree. Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of not less than three nor more than seven years. A direct appeal followed.*fn1
On March 12, 1976, however, we entered a judgment of non pros because appellant took no further action in his appeal. Appellant then filed a post-conviction petition alleging denial of his appeal rights because appellant had been abandoned by his privately retained counsel for "inability or neglect" to pay his counsel fees and that he was then denied the services of the Public Defender. Pursuant to this petition, the trial court entered an order allowing appellant a direct appeal to this Court nunc pro tunc from the trial court's judgment of sentence. This appeal followed in which appellant raises only one issue: a challenge to the sufficiency of the evidence.
The incident, resulting in Darell McGuire's death, occurred at approximately 2:00 a. m., on June 2, 1974, at the McGuire residence. The witnesses testified at trial that on this date, shortly after 1:00 a. m., that Darell, age seventeen, began to argue with his mother, Mrs. Charles McGuire. When Darell began cursing his mother, appellant, Darell's father, came downstairs and told him not to talk to his mother in that manner. Darell then hit appellant, causing his head to go through a glass table. Mrs. McGuire instructed her daughter to call the police, told Darell to leave the house and locked the door. However, Darell kicked the door in and re-entered the house. Again, Mrs. McGuire told Darell to leave the house and once again Darell regained entry. This time, he entered by climbing through a window which he broke with a door mat.
Darell then started a rampage throughout the house. After throwing objects around on the first level, Darell went into the third level bedroom occupied by his mother and
[ 487 Pa. Page 211]
appellant and began hitting and swinging at appellant with a lamp. Darell hit Mrs. McGuire, threw her down on the bed, and hit appellant with the lamp. Darell then ran upstairs to the fourth level bedroom where Mrs. McGuire had fled and tried to force open the door which Mrs. McGuire was holding closed from within. Inside the bedroom with Mrs. McGuire were appellant's daughter, Toni McGuire, appellant's stepdaughters, Pamela and Denise, and Denise's baby.*fn2
While Darell continued to push on the door, curse, and threaten to kill everybody, appellant went to his third level bedroom closet, took out a .25 caliber automatic handgun, and walked back to the bedroom doorway. Appellant unsuccessfully pleaded with Darell to stop, and Darell threw some billiard balls at him. Appellant then fired a single shot, fatally wounding Darell in the back.
In contradistinction to the witnesses' trial testimony, in a statement given to the police at the time of his arrest, appellant stated that his wife was in the third level bedroom at the time of the shooting. He further stated that the deceased was standing on the fourth level near the bedroom door and was hurling objects at him and his wife. According to the statement, the deceased continued to curse them and threaten their lives. The court below, in reaching its decision, accepted the statement version as to the whereabouts of Mrs. McGuire at the time of the shooting.
In his sufficiency of evidence claim, appellant argues that the evidence presented did not establish the charge of murder and that this Court should dismiss the charges and discharge the defendant because the killing was a justifiable one. Although appellant would have us treat this argument as a single proposition, it does in fact raise two distinct questions. First, whether the testimony provided a basis for finding a malicious killing beyond a reasonable doubt. Second, whether the testimony provided a basis for finding
[ 487 Pa. Page 212]
that the killing was not justifiable beyond a reasonable doubt. We cannot agree with the ultimate proposition that the evidence establishes a justifiable killing as a matter of law, but we are in agreement with the first part of the contention that a malicious killing was not established. We, therefore, reverse the judgment of sentence and award a new trial for the reasons that follow.
We will first consider the question as to whether the evidence can sustain a finding of a malicious killing and then turn to the other aspect of this case, to wit, whether the Commonwealth overcame the contention that the killing was a justifiable one.
It is beyond cavil that an accused in a criminal case is clothed with a presumption of innocence and that the burden of proof in establishing guilt rests with the Commonwealth. The quantum of proof necessary to satisfy this burden, which never shifts from the Commonwealth to the accused, is such that the fact-finder must be convinced beyond a reasonable doubt of the defendant's guilt. Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974); Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959). We have often stated that this identical burden extends to every material element of the crime charged and that if the Commonwealth fails to carry this burden beyond a reasonable doubt as to any one element, the accused must be acquitted. Commonwealth v. Young, 456 Pa. 102, 111, 317 A.2d 258, 262 (1974); Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Conklin, 399 Pa. 512, 515, 160 A.2d 566, 568 (1960). See also In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Commonwealth v. Bishop, 472 Pa. 485, 489-90, 372 A.2d 794, 796 (1977).
Under the new Crimes Code, 18 Pa.C.S.A. § 101, et seq. (Supp.1978-79), the offense of third degree murder incorporates common law malice as an element. 18 Pa.C.S.A. §§ 2501, 2502(c) (Supp.1978-79). In this jurisdiction we have
[ 487 Pa. Page 213]
adhered to the traditional definition of malice that was set forth in Commonwealth v. Drum, 58 Pa. 9 (1868).
Malice is a legal term, implying much more. It comprehends 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, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.
Commonwealth v. Drum, supra, 58 Pa. at 15. See also Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978); Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977). Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975); Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204 (1955).
A review of the evidence presented discloses an absence of the callous disregard and the recklessness of consequences required to find that the killing was a malicious one. See Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975). Moreover, the Commonwealth's reliance upon an inference of malice from the fact of the shooting is misplaced under the facts of this case. See Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975).
The Commonwealth attempted to justify the verdict of relying on the inference of malice that normally may be drawn from the fact that a deadly weapon has been used upon a vital part of the body. While this inference is well recognized in our law it will not be permitted to support a finding of malice where the direct evidence presented in the Commonwealth's case proves the contrary. (Emphasis added).
Commonwealth v. Caye, supra, 465 Pa. at 101, 348 A.2d at 137.
It is not disputed that appellant shot the victim and caused his death. It is also not disputed that the deceased exhibited an intention to inflict serious bodily injury to the
[ 487 Pa. Page 214]
person of the appellant and/or other members of the household during the incident which lead to the death. The question raised is whether the act was inspired by malice. In this case, the inference of malice that would normally arise from the appellant's use of a deadly weapon upon a vital part of the body of the deceased, absent further explanation, is clearly negated by the other evidence presented in this case by the Commonwealth. Commonwealth v. Caye, supra.
The testimony offered by the Commonwealth established the belligerent and pugnacious disposition of Darell (the deceased). One or two weeks before the shooting, Darell had struck his sister, Denise, five or six times about the head causing injury. In May, 1974, Darell had punched his sister, Pamela, causing a laceration of her lip which required medical attention. In June of 1974, Darell had struck appellant which resulted in appellant's hospitalization, under intensive care, for a period of one week. During the incident that lead to his death, Darell had assaulted his mother, appellant, and repeatedly threatened, "I'm going to kill all you m..... f....., I'm going to kill all of you."
Unquestionably, Darell McGuire was the provoker and the aggressor. Mrs. Gale Porter, the McGuire's neighbor, on direct examination testified that Darell broke the glass window and entered the home through the window. Mrs. Porter also saw Darell struggling with Mr. and Mrs. McGuire on the third floor of the residence. This prosecution witness also testified that she observed and heard Darell running rampant throughout the house on a course of physical destruction. Mrs. Porter heard appellant tell Darell to stop his rampage. Another prosecution witness said that appellant pleaded with Darell five or six times to stop his rampage. When Darell initially hit appellant, he fell through a glass table. His eye cut, he retreated upstairs to the bedroom. Downstairs, Mrs. McGuire and Darell were still arguing and Darell left the house. The doors were then locked behind him. Darell then broke the glass window, re-entered the house and renewed his attack. Appellant told
[ 487 Pa. Page 215]
Darell: "Be like a man, and just leave the house right now." Darell responded by swinging the lamp at appellant and by throwing appellant's wife on the bed. Darell then hollered throughout the house, "There ain't nobody going to be alive but me." Toni, Darell's younger sister, heard the threat, jumped out of the window and ran "because he [Darell] was going to come up there and kill us." These undisputed facts negated any possible inference of malice that may have been suggested by appellant's firing the weapon at a vital part of Darell's body. Commonwealth v. Caye, supra.
The Commonwealth correctly states that although some of the evidence it introduced may have been supportive of the defense's version of the facts, it may nevertheless establish it's version of the facts from other competent evidence. Commonwealth v. Mahoney, 460 Pa. 201, 331 A.2d 488 (1975). See also Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977); Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Gonzales, 463 Pa. 597, 345 A.2d 691 (1975). The weakness of this contention is that the Commonwealth did not offer any evidence, from any source, which would have proved the element of malice beyond a reasonable doubt. The Commonwealth relies upon portions of a statement given to the police by the appellant at the time of his arrest. It is argued that this statement proves that appellant's act was not compelled by a fear for personal safety or for the safety of the other members of his household. Under the most favorable reading for the Commonwealth, the statement suggests only that appellant may have acted out of anger and rage.*fn3 This, therefore, would not support a finding of murder of the third degree but rather voluntary manslaughter since the record amply supported
[ 487 Pa. Page 216]
the presence of legal provocation. See e. g. Commonwealth v. Berry, 461 Pa. 233, 336 A.2d 262 (1975); Commonwealth v. Long, 460 Pa. 461, 333 A.2d 865 (1975). As has been repeatedly stated, murder is distinguished from the lesser degrees of homicide because of the presence of malice. See Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975); Commonwealth v. Parker, 458 Pa. 381, 327 A.2d 128 (1974); Commonwealth v. Yuknavich, 448 Pa. 502, 295 A.2d 290 (1972); Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970); Commonwealth v. Chermansky, 430 Pa. 170, 242 A.2d 237 (1968). Here, that element was missing and a verdict of murder of the third degree may not be permitted to stand.
Although we must sustain the appellant's contention that the evidence is insufficient to support a verdict of murder of the third degree, we do not agree that a verdict of voluntary manslaughter could not have been sustained on the record before us. As stated, the evidence did not provide a basis for a finding of malice, which precludes a verdict of any degree of murder, however, there was testimony that would support the finding that the killing was a felonious one and not justifiable.
Justification as a statutory defense is set forth in 18 Pa. C.S.A. § 501 et seq. Section 505(a) provides:
The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
Where deadly force is used, section 505(b)(2) provides in pertinent part:
The use of deadly force is not justified under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury. . . (Emphasis added)
The requirement of the defense available for the protection of others is set forth in section 506(a) which provides:
[ 487 Pa. Page 217]
The use of force upon or toward the person of another is justifiable to protect a third person when:
(1) the actor would be justified under section 505 of this title (relating to use of force in self-protection) in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect;
(2) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(3) the actor believes that his intervention is necessary for the protection of such other person.*fn4
The words "believes" or "belief" when used in this chapter are to be interpreted as meaning " reasonably believes" or " reasonable belief." 18 Pa. C.S.A. § 501. Therefore, the use
[ 487 Pa. Page 218]
of deadly force in the defense of self or another cannot be justified unless the actor reasonably believes that such force is necessary to avoid death or serious bodily harm. See e.g. Commonwealth v. Eberle, 474 Pa. 548, 379 A.2d 90 (1977); Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970).
If the sequence of events as described by the witnesses at trial represented the only evidence to be considered by the factfinder, the position of the appellant would be compelling. See e. g. Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977); Commonwealth v. Walley, 466 Pa. 363, 353 A.2d 396 (1976); Commonwealth v. Daniels, 451 Pa. 163, 301 A.2d 841 (1973). This testimony indicated that immediately before the shooting, in response to threats upon her life and the life of her children, Mrs. McGuire fled to a bedroom on the fourth level where she and her daughters were attempting to barricade the door against Darell's forcible entry. It was contended that the fatal shot was fired by the appellant, who was standing on the third level, to prevent Darell from gaining entrance and grievously assaulting the occupants of the fourth level bedroom. We would agree that if this was the only evidence upon which the judgment was to be rendered, a compelling argument could be made for the discharge of the accused as a matter of law. See e. g. Commonwealth v. Mahoney, 460 Pa. 201, 331 A.2d 488 (1975).
However, a statement given by appellant at the time of his arrest and introduced against him at trial provided another dimension to the factual question. In that account of the events, appellant stated that his wife was in the bedroom on the third level when the shooting occurred. Moreover, that statement made no mention as to whether anyone else, other than the victim, was on the fourth level at the time, or that Darell was attempting to force his way into a room on that level.*fn5
[ 487 Pa. Page 219]
Presented with this second version, a finder of fact clearly had a basis for concluding that the killing was voluntary manslaughter.*fn6
[ 487 Pa. Page 220]
Under the statement version, the only threat posed to appellant or his wife by Darell, while he remained at the fourth level, was the possibility of their being struck by one of the objects he was throwing. There was nothing to indicate that Darell was about to descend the stairs. Appellant's statements during police interrogation seemed to suggest that the interior of the third level bedroom may have provided refuge from any of the objects hurled from above. Since the victim's attack was directed to occupants of the third level and not the fourth level, the entry of the bullet in the back of the victim gains significance. The distance between the parties would tend to indicate the appellant may have had an opportunity to warn Darell of his intention to shoot before doing so, without exposing himself or his wife to further danger.
We are not suggesting that a factfinder could not reach a conclusion of a justifiable killing having once found the statement version to be the most creditable. Our position is that the version set forth in the statement raises a jury question as to whether appellant could have reasonably believed that the force used was necessary at that moment to protect himself and his wife. See Commonwealth v. Jackson, 467 Pa. 183, 355 A.2d 572 (1976); Commonwealth v. Daniels, supra.
In summary, having concluded the Commonwealth has failed to establish a malicious killing beyond a reasonable doubt, we must sustain appellant's claim as to the sufficiency of the evidence to support a verdict of murder of the third degree. Further, we have concluded for the reasons stated that there was evidence which, if believed, would support a finding of voluntary manslaughter. We, therefore, cannot accede to appellant's further request that we rule as a matter of law that the killing was justifiable and enter an order discharging the defendant. The evidence raises a question that is properly within the province of a
[ 487 Pa. Page 221]
finder of fact. It is their responsibility to determine whether the killing in this case was justifiable or whether it constituted voluntary manslaughter.*fn7
Accordingly, we reverse the judgment of sentence and discharge the appellant as to the count charging murder of the third degree and remand the cause for a new trial on the voluntary manslaughter charge.
ROBERTS, Justice, dissenting.
I dissent. There is no dispute that appellant Charles L. McGuire shot the victim in the back and caused his death. It is well established that a fact finder may infer malice from the use of a deadly weapon upon a vital part of the body. E. g., Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978); Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976). Reading all the evidence of this case in the light most favorable to the Commonwealth, Commonwealth v. Ford, 472 Pa. 542, 372 A.2d 821 (1977), I must conclude that the evidence was sufficient to sustain the judge's finding of malice.
[ 487 Pa. Page 222]
LARSEN, Justice, dissenting.
I dissent. I disagree with the Majority's conclusion that a verdict of voluntary manslaughter can be sustained on the record.
A review of the record indicates that immediately prior to his death, the victim conducted a reign of destruction and terror throughout his house, assaulted appellant (his father) and his mother, and threatened to kill all of the individuals who were in the house. When, during his siege of the house, the victim tried to force open the door to the room on the fourth level of the house where some members of his family were located, appellant fired the fatal shot at the victim in order to protect his family from the victim. Clearly, appellant's slaying of the victim constituted justifiable homicide.
Notwithstanding the victim's violent and threatening conduct, the Majority concludes that appellant's slaying of the victim could constitute voluntary manslaughter. The only evidence which the Majority cites to support such a finding is a statement given by appellant to the police wherein (according to the Majority) "appellant stated, that his wife was in the bedroom on the third level when the shooting occurred. . . . [T]hat statement made no mention as to whether anyone else, other than the victim, was on the fourth level at the time, or that Darell [the victim] was attempting to force his way into a room on that level." The Majority attaches unwarranted significance to this statement -- in fact, the statement adds nothing to the Commonwealth's case. Even if appellant's wife was in the third level bedroom (and not on the fourth level) when the shooting occurred, the fact remains that other members of appellant's family were under attack on the fourth level at the time of the shooting. The Commonwealth's evidence minimally establishes that there were family members under attack by the victim on the fourth floor -- appellant's statement is not contra to this.
Thus, appellant's slaying of the victim was justifiable; appellant should be discharged.