No. 2860 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 2371-80
William F. Fox, Jr., Norristown, for appellant.
John J. Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Brosky, Wieand and Beck, JJ.
[ 310 Pa. Super. Page 495]
Cassel Newman was tried by jury and convicted of voluntary manslaughter and possession of an instrument of crime. These convictions were for two of several charges which had been brought against him as a result of the shotgun killing of his neighbor, Henry Major Basketville, a/k/a Henry Major. Post verdict motions were dismissed, and Newman was sentenced to prison for voluntary manslaughter. On direct appeal, he contends that the evidence was insufficient to sustain the conviction for voluntary manslaughter and that the trial court erred in refusing a requested jury instruction that the Commonwealth had the burden of proving a killing which was not the result of accidental misadventure. We find no merit in appellant's contentions and, accordingly, affirm the judgment of sentence.
[ 310 Pa. Super. Page 496]
On July 30, 1980, Major visited appellant, who was his neighbor. When Major, who had been drinking, became loud, appellant managed to maneuver him from the house. However, Major continued to pound on appellant's door until appellant retrieved his shotgun from the bedroom, loaded it, and fired it into the ground. Major then left. However, he returned a short time later with a handgun and started again to pound on appellant's door. Newman once again picked up his shotgun and went to the door. A physical struggle ensued outside the home during which Major was shot in the head and killed by a blast from Newman's shotgun.
When we view this evidence in the light most favorable to the Commonwealth, as we are required to do, Commonwealth v. Waller, 498 Pa. 33, 42, 444 A.2d 653, 658 (1982); Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981), it is clear that it was sufficient to sustain the conviction for voluntary manslaughter. Appellant contended and testified that the shooting had been accidental, i.e., that the shotgun had gone off accidentally during the struggle. However, the jury was free to accept some, all or none of his explanation. Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 539 (1979); Commonwealth v. Rose, 463 Pa. 264, 267-268, 344 A.2d 824, 826 (1975); Commonwealth v. Murray, 460 Pa. 605, 609, 334 A.2d 255, 257 (1975); Commonwealth v. Glasco, 298 Pa. Super. 189, 192, 444 A.2d 724, 726 (1982); Commonwealth v. Hankerson, 298 Pa. Super. 194, 196, 444 A.2d 727, 728 (1982).
Appellant contends on appeal that the testimony of Marion Johnson, the decedent's girlfriend, was so contradictory as to be unworthy of belief. She testified that appellant had pointed the gun at Major, had pushed him off the porch with the gun, and had threatened to kill him. She also said that she heard appellant repeatedly say "I got him" after the shooting had occurred. The credibility of her testimony was for the jury to determine. It was not for the trial
[ 310 Pa. Super. Page 497]
court, or this court on appeal, to determine the weight to be given her testimony. See: Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980); Commonwealth v. Preston, 488 Pa. 311, 315, 412 A.2d 524, 526 (1980); Commonwealth v. Martin, 481 Pa. 515, 519, 393 A.2d 23, 25 (1978); Commonwealth v. Glasco, supra 298 Pa. Super. at 192, 444 A.2d at 726; Commonwealth v. Battle, 289 Pa. Super. 369, 375, 433 A.2d 496, 498-499 (1981); Commonwealth v. Daniels, 281 Pa. Super. 334, 339, 422 A.2d 196, 198 (1980).
Moreover, the verdict in this case was supported by competent evidence other than that given by the decedent's girlfriend. The fact that there had been no other eyewitnesses did not require the jury to accept appellant's version that he had not pulled the trigger and that the gun had been discharged accidentally during the struggle. The Commonwealth produced a weapons expert who described the shotgun's firing mechanism and demonstrated the unlikelihood of an accidental firing. The accidental nature of the shooting tended to be refuted also by appellant's attitude and statements as ...