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.
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
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 ...