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decided: December 21, 1979.


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.

Author: Nix

[ 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 ...

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