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COMMONWEALTH PENNSYLVANIA v. DONALD R. FISHER (09/22/80)

decided: September 22, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DONALD R. FISHER, APPELLANT



No. 49 May Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, York County, at No. 1343 C.A. 1978

COUNSEL

Victor Dell'Alba, York, for appellant.

Thomas J. McCullough, York, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Eagen

[ 491 Pa. Page 233]

OPINION OF THE COURT

Appellant was convicted of voluntary manslaughter by a jury in the Court of Common Pleas of York County. Post-verdict motions were denied, and sentence of imprisonment

[ 491 Pa. Page 234]

    for a period of two to four years was imposed on August 17, 1979. This direct appeal followed.

The principal issue is whether the evidence supports the jury's finding of voluntary manslaughter or whether, on the contrary, it establishes the killing was an act of self-defense. In making this determination, we must view the evidence admitted at trial in the light most favorable to the Commonwealth and draw all reasonable inferences in favor of the Commonwealth. Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976); Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976). So viewed, the record reveals the following:

Appellant, Donald R. (Skip) Fisher, was married to Joanne Fisher for seventeen years, separated in 1978, and divorced in July 1978. After the separation, Joanne maintained an apartment and was seeing the victim, Danny McLaughlin. In June 1978, five months before the incident involved in this case, Fisher arrived at Joanne's apartment to pick up their youngest daughter for an outing and saw McLaughlin on the couch. Following that chance meeting, Fisher twice stated to Joanne that he was going to kill her "nappy-haired bearded hippie boyfriend." In September 1978, approximately two months before the incident, Fisher spoke to Joanne by telephone and stated that he knew who her boyfriend was. He warned her not to see him and threatened "to blow him away." In October 1978, Joanne began living with McLaughlin at his apartment.

On the evening of November 2, 1978, several telephone calls were made between McLaughlin and Fisher. The calls to Fisher's home were initiated by McLaughlin who believed Fisher was responsible for vandalizing his garage and tried to get him to admit it. Beginning about 8 p. m., McLaughlin made five or six calls to Fisher's residence and two calls to Fisher at other locations. Furthermore, several calls were made that evening by Fisher to McLaughlin. Following the last call, which occurred around 11 p. m., McLaughlin stated he was going to his garage to meet the police. Joanne Fisher testified that McLaughlin was intoxicated

[ 491 Pa. Page 235]

    that evening and did not have complete control of his mental faculties. "[H]e was acting different from what he normally acted; he was very ...


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