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COMMONWEALTH PENNSYLVANIA v. ONDRAY UPSHER (04/21/82)

decided: April 21, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ONDRAY UPSHER, APPELLANT



No. 80-1-134, Appeal from the Judgment of Sentence entered on June 9, 1980, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at No. CC7906539.

COUNSEL

John H. Corbett, Jr., Chief, Appellate Division, Asst. Public Defender, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt Deputy Dist. Atty., Kathryn L. Simpson, Dora A. DeCourcy, Asst. Dist. Attys., Pittsburgh, for appellee.

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

Author: Larsen

[ 497 Pa. Page 623]

OPINION

On November 1, 1979, Robert Houser was stabbed to death by appellant, Ondray Upsher. On March 20, 1980, appellant was convicted by a jury of murder of the third degree. Motions for a new trial and arrest of judgment were denied, and appellant was sentenced to a prison term of seven and one-half to twenty years. This direct appeal followed.

Appellant first contends that the evidence presented at trial by the Commonwealth was insufficient to establish his guilt of third degree murder beyond a reasonable doubt. Specifically, appellant contends that the evidence presented

[ 497 Pa. Page 624]

    by the Commonwealth was insufficient to prove that he was not acting in self-defense when he killed Robert Houser.*fn1

When there is any evidence at trial that a killing may have been done in self-defense, the Commonwealth must prove beyond a reasonable doubt at least one of the following: 1) that the defendant did not reasonably believe he was in danger of death or serious bodily injury; 2) that the defendant provoked the use of force; or 3) that the defendant had a duty to retreat, and that retreat was possible with complete safety.*fn2 Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979).

On November 1, 1979, at approximately 7:00 P.M., appellant left the company of some friends to proceed home. While taking a shortcut through a field on his way home, appellant was approached by the victim who asked appellant if he had seen anybody in the field having intercourse. Without further discussion, appellant continued through the field towards his home. As he exited the field, appellant warned two acquaintances not to enter the field because "there is an old rapist down there." After procuring some cigarettes and a knife from his home, appellant asked an acquaintance to accompany him back into the field. Before he entered the field, appellant requested the acquaintance to wait by the edge of the field until he returned. Appellant went into the field ...


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