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COMMONWEALTH PENNSYLVANIA v. RODNEY BAYLOR (09/23/83)

submitted: September 23, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
RODNEY BAYLOR, APPELLANT



No. 214 Harrisburg, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, No. 1306 C.D. 1981.

COUNSEL

John M. Glace, Assistant Public Defender, Harrisburg, for appellant.

Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Wieand, Cirillo and Johnson, JJ.

Author: Wieand

[ 323 Pa. Super. Page 11]

Rodney Baylor was tried by jury and convicted of murder of the third degree*fn1 in connection with the shooting death of Arthur Green on June 13, 1981. On direct appeal following the denial of post verdict motions and the imposition of sentence, Baylor contends (1) that the evidence was insufficient to support his conviction; and (2) that his constitutionally protected right not to be placed twice in jeopardy for

[ 323 Pa. Super. Page 12]

    the same offense was violated when the trial court allowed the trial to continue after a juror, who had been selected and sworn following voir dire examination, was discharged for cause and replaced because she had changed her mind overnight and declared that she would be unable to consider the death penalty. There is no merit in these contentions; and, therefore, we affirm the judgment of sentence.

In reviewing the sufficiency of the evidence, we view the evidence, and all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth. The test is whether the evidence thus viewed is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Keblitis, 500 Pa. 321, 322, 456 A.2d 149, 150 (1983); Commonwealth v. Hartzell, 320 Pa. Super. 249, 257, 467 A.2d 22, 26 (1983); Commonwealth v. Ruffin, 317 Pa. Super. 126, 129, 463 A.2d 1117, 1118-1119 (1983). Thus viewed, the evidence discloses that Baylor and Kevin Smith went to Arthur Green's house in the Allison Hill section of Harrisburg at or about 9:00 p.m. on June 13, 1981 for the purpose of buying cocaine. Smith departed empty-handed after a brief stay because he and Baylor did not have enough money to purchase the drugs. Baylor remained and thereafter pulled out a .22 caliber handgun and demanded money from Green. In the presence of Green's fiancee, Carolyn Wallace, Baylor shot Green through the left lung and heart as Green reached for the money in his shirt pocket. Green died later that evening at the Harrisburg Hospital. Baylor, who had fled the scene immediately after the shooting, was arrested the following day at his parents' home. A search of Baylor's dresser in his bedroom produced six .22 caliber bullets.

[ 323 Pa. Super. Page 13]

This evidence was sufficient to warrant a finding of murder in the third degree. The gravamen of third degree murder is a killing committed with malice. See: Commonwealth v. Young, 494 Pa. 224, 227, 431 A.2d 230, 232 (1981); Commonwealth v. Pitts, 486 Pa. 212, 219, 404 A.2d 1305, 1308 (1979); Commonwealth v. Carter, 481 Pa. 495, 498-499, 393 A.2d 13, 15 (1978); Commonwealth v. Page 13} Wanamaker, 298 Pa. Super. 283, 287, 444 A.2d 1176, 1178 (1982). Malice may be proven by circumstantial evidence, including the accused's utilization of a deadly weapon to inflict a wound to a vital organ. Commonwealth v. D'Ambro, 500 Pa. 303, 308 n. 5, 456 A.2d 140, 143 n. 5 (1983); Commonwealth v. Martinez, 499 Pa. 417, 423, 453 A.2d 940, 944 (1982); Commonwealth v. Roberts, 496 Pa. 428, 435, 437 A.2d 948, 951-952 (1981); Commonwealth v. Horton, 485 Pa. 115, 118, 401 A.2d 320, 322 (1979); Commonwealth v. Cartagena, 272 Pa. Super. 485, 490, 416 A.2d 560, 563 (1979); Commonwealth v. Kennerly, 269 Pa. Super. 404, 407, 410 A.2d 319, 321 (1979). The fact that Baylor was a drug addict and may have been ill because of withdrawal did not preclude a finding of malice. See: Commonwealth v. Coleman, 482 Pa. 581, 585-586, 394 A.2d 474, 476-477 (1978) (plurality opinion). Cf. Commonwealth v. Milburn, 488 Pa. 601, 603, 413 A.2d 388, 388 (1980); Commonwealth v. Hicks, 483 Pa. 305, 312, 396 A.2d 1183, 1186 (1979); Commonwealth v. Ruff, 266 Pa. Super. 497, 498-499, 405 A.2d 929, 929-930 (1979); 18 Pa.C.S. ยง 308. See generally: Commonwealth v. Fairell, 476 Pa. 128, 133-134, 381 A.2d 1258, 1260-1261 (1977) (issue of defendant's "intoxication" on narcotics in first degree murder prosecution, as it relates to ability to form specific intent to kill, is for resolution by the jury). Accord: Commonwealth v. Padgett, 465 Pa. 1, 348 A.2d 87 (1975); Commonwealth v. Fostar, 455 Pa. 216, 317 A.2d 188 (1974).

Moreover, inconsistencies in the testimony of Carolyn Wallace, the victim's fiancee, were for resolution by the jury and did not render the evidence insufficient to convict. See: Commonwealth v. Galloway, 495 Pa. 535, 539, 434 A.2d 1220, 1222 (1981); Commonwealth v. Hartzell, supra 320 Pa. Super. at 257, 467 A.2d at 26; Commonwealth v. Curry, 318 Pa. Super. 490, 495, 465 A.2d 660, 662 (1983); Commonwealth v. Boettcher, 313 Pa. Super. 194, 200, 459 A.2d 806, 808 (1983). The jury was free to believe ...


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