No. 80-1-71, Appeal from the Judgment of Sentence entered on March 10, 1980, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at Nos. CC7902645A and CC7902854A.
John H. Corbett, Jr., Paulette J. Balogh, Asst. Public Defenders, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kathryn L. Simpson, Asst. Dist. Atty., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
On October 18, 1979, in the Court of Common Pleas of Allegheny County, appellant, Charles "Lamont" White, was convicted by a jury of voluntary manslaughter. A sentence of four to ten years imprisonment was imposed. Post-trial motions were denied, and the instant direct appeal ensued.
In the early morning hours of August 21, 1978, appellant was patronizing the bar of an after-hours club in Pittsburgh when he became involved in an argument with Anthony Brooks regarding the conduct of a dice game held earlier in which appellant lost a sum of money, as a consequence, he
contended, of being cheated by Brooks. Appellant threatened Brooks with a gun, whereupon the former was disarmed by the club's manager who gave the gun to one of appellant's friends, who in turn placed it in appellant's car. Later, the argument flared anew outside the club and a fist fight ensued in which appellant was overpowered. Appellant then proceeded to his car, retrieved his gun, and fatally wounded Brooks.
Voluntary manslaughter is a killing committed without malice, in the heat of passion or under the unreasonable belief that it was justified. Commonwealth v. Cain, 484 Pa. 240, 398 A.2d 1359 (1979). The Commonwealth, to procure a verdict of voluntary manslaughter, has the burden of proving beyond a reasonable doubt that a homicide was not a justifiable act of self-defense. Commonwealth v. Walley, 466 Pa. 363, 353 A.2d 396 (1976). To avail oneself of deadly force for self-protection, (1) the actor must reasonably believe that he is in imminent danger of death or serious bodily harm, and that it is necessary to use deadly force against the victim to prevent such harm, (2) the actor must be free from fault in provoking or continuing the difficulty which culminated in the slaying, and (3) the actor must not violate a duty to retreat. Commonwealth v. C. Brown, 491 Pa. 507, 421 A.2d 660 (1980). Appellant contends the Commonwealth's evidence was insufficient to negate self-defense.
Regarding the issue of whether appellant reasonably believed himself to be in imminent danger of death or serious bodily harm, the Commonwealth produced pathological testimony that Brooks' hands suffered no bruises during the altercation. Hence, the jury may have inferred that Brooks was not severely beaten by appellant. Furthermore, several witnesses testified that Brooks was not armed, and none deemed it advisable to summon police during the conflict. Such evidence may have ...