No. 223 January Term, 1979, Appeal from the Judgment of Sentence of the Common Pleas Court of Philadelphia, Criminal Division, at No. 545 July Session, 1978.
David Kanner, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Andrew B. Cohn, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ.
Appellant, Estie Moore, was convicted by a court sitting without a jury of murder of the third degree and sentenced to a term of three to ten years imprisonment. On appeal to this Court, appellant contends that the evidence establishes only that appellant and the victim were involved in a fistfight and thus is insufficient to support a conviction of murder of the third degree. We disagree and affirm judgment of sentence.*fn*
Appellant's sufficiency claim relies on the basic principle, reflected by cases of this Court, that:
"Every death resulting from a fist fight does not constitute murder in the second [(now third)] degree. Conviction of murder in the second degree requires clear evidence of malice."
Commonwealth v. Buzard, 365 Pa. 511, 516-17, 76 A.2d 394, 396 (1950). According to appellant, Commonwealth evidence here fails sufficiently to demonstrate malice on the part of appellant. In appellant's view, the record reveals that he merely responded to the attack of the victim, who allegedly was swinging a clawhammer.
Appellant's argument is based on his view of selected portions of the record and fails to give recognition to the record as a whole. This, of course, is not our standard for reviewing claims of insufficient evidence. As this Court so often has stated, the test is:
"[W]hether, viewing all of the evidence admitted at trial 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 ...