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decided: July 2, 1981.


No. 31 January Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, No. 654 April Session, 1978.


Edmund L. Levine, Philadelphia (Court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Kenneth S. Gallant, Asst. Dist. Atty., for appellee.

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

Author: Kauffman

[ 494 Pa. Page 226]


Appellant, Oscar P. Young, was convicted of third degree murder, possession of an instrument of crime and a violation of the Uniform Firearms Act following a non-jury trial in the Court of Common Pleas of Philadelphia. Post-verdict motions were denied and appellant was sentenced to concurrent terms of 2 1/2 to 5 years imprisonment on the weapons offenses, and a consecutive term of 15 years probation on the murder charge. This direct appeal, in which the sole issue is whether there was sufficient evidence of malice to sustain the third degree murder conviction, followed.*fn1

The testimony may be summarized as follows: On February 6, 1978 at approximately 6:30 p. m., appellant boarded a SEPTA bus at 50th Street and Woodland Avenue in Philadelphia. As the bus proceeded west on Woodland Avenue, appellant and two companions, who were seated in the rear, began shouting obscenities at several youths standing on the street, one of whom was the victim, Ralph Williams. Williams and another youth, who were throwing snowballs at the bus, tried to board the bus near 53rd Street, but the driver refused to seat them. One of the passengers on the bus testified that Williams "ran the bus down" and asked to get on so he could talk to "them guys back there." When the driver ordered him off, Williams exited. After Williams was back on the street, appellant drew a .22 caliber gun from his waistband, pointed it out an open window and shot Williams in the chest, fatally wounding him.

Appellant testified that once Williams was off the bus, he resumed throwing snowballs, one of which came through an open window and hit him in the eye. One of Williams' companions, however, testified that Williams did not throw any more snowballs at the bus after he disembarked. The

[ 494 Pa. Page 227]

    witness further stated that just before he heard the gunshot, he saw an arm come through the bus window and heard a voice state "I'm going to get you."*fn2

Claiming that the shooting was accidental, appellant argues that the evidence adduced at trial was insufficient to establish beyond a reasonable doubt that the killing was committed with malice. We disagree.

Malice is one of the essential elements of third degree murder, Commonwealth v. Horton, 485 Pa. 115, 401 A.2d 320 (1979); Commonwealth v. McFadden, 448 Pa. 277, 292 A.2d 324 (1972), and it is the distinguishing factor between murder and manslaughter:

"Malice express or implied is the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances . . .

"To summarize: If there was an unlawful killing with (legal) malice, express, or implied, that will constitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental. . . ."

Commonwealth v. Commander, 436 Pa. 532, 537, 260 A.2d 773, 776 (1970), quoting Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157 (1963) (emphasis added, citations omitted).

[ 494 Pa. Page 228]

Thus, malice may be found to exist not only in an intentional killing, but also in an unintentional homicide where the perpetrator "consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Commonwealth v. Hare, 486 Pa. 123, 129, 404 A.2d 388, 391 (1979).

The well-established test for reviewing the sufficiency of the evidence is:

"'[w]hether, accepting as true all the evidence and all [the] reasonable inferences therefrom upon which if believed the [finder of fact] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes for which he has been convicted.' Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). In this regard it must be noted that the finder of fact has the right to reject part or all of the defendant's testimony even if uncontradicted. Commonwealth v. Chermansky, 430 Pa. 170 at 174, 242 A.2d 237 at 240."

Commonwealth v. Taylor, 461 Pa. 557, 560, 337 A.2d 545, 546 (1975), quoting Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974). Viewing the evidence in this light, we conclude that there was sufficient evidence to prove a malicious homicide beyond a reasonable doubt. Appellant intentionally pointed a loaded gun at the victim and shot him in the chest. Under these circumstances, whether the gun discharged accidentally or was fired intentionally is irrelevant for the purpose of determining the existence of malice.*fn3 Even if, as appellant claims, he did not know that

[ 494 Pa. Page 229]

    the gun was loaded and intended only to "scare" the victim, his conduct nevertheless unjustifiably created an extremely high degree of risk, thereby evincing a wanton and reckless disregard for human life. By intentionally aiming a gun at Williams without knowing for a certainty that it was not loaded, appellant exhibited that type of cruel and wanton conduct of which legal malice is made.

In light of the foregoing, we conclude that there was sufficient evidence to sustain a verdict of third degree murder and affirm the Judgment of Sentence.*fn4

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