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COMMONWEALTH PENNSYLVANIA. v. MICHAEL D. GILLESPIE (05/26/81)

submitted: May 26, 1981.

COMMONWEALTH OF PENNSYLVANIA.
v.
MICHAEL D. GILLESPIE, APPELLANT



No. 344 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 306 of 1980.

COUNSEL

Daniel McGee, Public Defender, Bellefonte, for appellant.

Ray F. Gricar, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

Wickersham, McEwen and Wieand, JJ.

Author: Wieand

[ 290 Pa. Super. Page 339]

Michael David Gillespie was tried by a jury which found him guilty of voluntary manslaughter in a death growing out of a street altercation in Bellefonte, Centre County. On appeal, following denial of post trial motions, Gillespie argues that the evidence was insufficient to prove that the killing was not in self-defense, or at least that the verdict was contrary to the weight of evidence showing that the killing was in self-defense. He also contends that it was error for the trial court to refuse to sequester jurors and that a sentence of imprisonment for not less than five or

[ 290 Pa. Super. Page 340]

    more than ten years was manifestly excessive. We find no merit in appellant's contentions; and, therefore, we affirm the judgment of sentence.

Following completion of a baseball game on the evening of June 19, 1980, appellant and two friends were driving around downtown Bellefonte where they became involved in a verbal argument with Donald Summers, who was seated on the steps of a building, shouting at those who passed in their automobiles. The vehicle was stopped, and appellant and his companions exited the vehicle and approached Summers. Although angry words were exchanged, the arrival of a police officer terminated the confrontation.

Appellant and his friends re-entered their vehicle and drove to the outskirts of Bellefonte, where they drank beer and talked to friends. When they subsequently returned to the downtown area, they stopped to speak with Fred Hockenberry, who had been an observer of their earlier confrontation with Summers. Meanwhile, the driver of the vehicle, David Johnstonbaugh, got out of the vehicle and walked to the rear of the building which housed the Wooden Apple Bar. Upon his return, Johnstonbaugh encountered Summers, who lived in a neighboring building and who attempted to block Johnstonbaugh's passage. A fight erupted in which fists were thrown by both men. Johnstonbaugh eluded Summers, however, and returned to the car where appellant was seated.

When appellant recognized Summers as the person involved in the earlier confrontation, he got out of the car and sat on the hood. As Summers approached, appellant came off the hood of the car, removed his belt and wrapped it around his hand. Summers, whose hands had been behind his back, now produced a paring knife. In the ensuing struggle, appellant was cut on the wrist and had his belt taken from him by Summers. A temporary lull occurred when appellant managed to push Summers away and make his way back to the car. When appellant reached the car door, however, he was told by onlookers that Summers was directly behind him. He picked up a baseball bat, which his companions had placed against the side of the car moments

[ 290 Pa. Super. Page 341]

    earlier, and told Summers to get back. Instead, Summers struck out with the knife, scratching appellant across the midsection. Appellant then swung the bat twice, in the same manner as a batter would swing at a thrown ball, hitting Summers both times on the head with heavy and severe blows. Summers was dazed by the first blow and fell unconscious to the sidewalk after the second. Appellant then kicked Summers in the head, shouting that Summers ...


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