Commonwealth v. Gray, Appellant
Supreme Court of Pennsylvania
November 12, 1970
December 23, 1970
441 Pa. 91 | 271 A.2d 410
re-argument refused December 23, 1970.
Melvin E. Caine, with him Caine, Di Pasqua, Edelson & Patterson, for appellant.
OPINION BY MR. JUSTICE JONES, November 12, 1970:
Alvin C. Gray, appellant, and one John Stephens were indicted in Delaware County for murder, voluntary manslaughter and conspiracy in connection with the fatal stabbing of Emanuel Brown on January 12, 1969, in Darby Township, Delaware County, Pennsylvania. Each was tried separately and Stephens, who was tried first, was acquitted of all charges. Thereafter, the trial of Gray commenced, with the jury ultimately rendering a verdict of guilty of second degree murder.1 Motions in arrest of judgment and for a new trial was made and denied by order of court filed November 24, 1969. Gray was sentenced on December 5, 1969, to a term of seven and one-half to fifteen years’ imprisonment. This appeal followed.
While the testimony of the various witnesses was contradictory, it apрears to us that on the fatal date the appellant and Stephens were wandering on “foreign turf.” They were met by decedent Brown and a Milton Gans and words were exchanged. Subsequently, ten to thirteen boys, led by the victim, began to chase and throw bricks at Gray and Stephens. Eventually, a hand-to-hand encounter ensued between the victim and Stephens. According to appellant‘s testimony, he later joined the fray and sucсeeded only in punching the victim while being knocked unconscious by a brick and waking up some distance away.
In support of his alternative motions, appellant advances six contentions: (1) the evidence was insufficient to sustain the verdict of second-degree murder;
In support of his first contention, appellant basically argues that the inconsistencies and variances among the Commonwealth‘s witnesses as to specific details demonstrate the insufficiency of the evidence upon which the conviction was based. However, variances in testimony or the fact that witnesses may have made contradictory statements goes to credibility and not to sufficiency. Com. v. Osborne, 433 Pa. 297, 249 A. 2d 330 (1969). “[I]n determining the sufficiency of the evidence, be it direct or circumstantial, the test is whether, accepting as true all of the evidence and all reasonable inferences arising therefrom, upon which if believed the jury could properly have basеd its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted: Com. v. Commander, 436 Pa. 532, 260 A. 2d 773 (1970).” Com. v. Myers, 439 Pa. 381, 383-84, 266 A. 2d 756 (1970). Accord, Com. v. Winebrenner, 439 Pa. 73, 265 A. 2d 108 (1970). Of course, the record must be considered and read in the light most favorable to the Commonwealth.
At trial, both Gray and Stephens unequivocally denied doing the stabbing and denied any possession of a
Secondly, appellant alleges it was error for the trial judge to refuse to instruct on self-defense or defense of another. “The following conditions must be satisfied before one can successfully invoke the defense of self-defense: 17 P.L.E. Homicide §§45, 46; C.J.S. Homicide §114. (1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing: Commonwealth v. Minoff, 363 Pa. 287, 69 A. 2d 145 (1949). (2) The slayer must have reasonably believed that he was in imminent danger of death, great bodily harm, or some felony, and that there was a necessity to kill in order to save himself therefrom: Commonwealth v. Collazo, 407 Pa. 494, 180 A. 2d 903 (1962); Commonwealth v. Miller, 313 Pa. 567, 170 A. 128 (1934); Commonwealth v. Russogulo, 263 Pa. 93, 106 A. 180 (1919). (3) The slayer must not have violated any duty to retreat or avoid the danger: Commonwealth v. Collazo, supra; Commonwealth v. Johnson, 213 Pa. 432, 62 A. 1064 (1906); Common-
However, it is irrelevant whether the accused fits within either of these categories for it must be remembered that the appellant steadfastly denied in his testimony that he stabbed the victim. In Com. v. Pavillard, 421 Pa. 571, 220 A. 2d 807 (1966), error was alleged in the trial judge‘s refusal to charge the jury on the law regarding homicide by misadventure (mistake) even though the accused denied any complicity in the homicide. Tо paraphrase the language of the Pavillard opinion, appellant‘s testimony as to the victim‘s death, if believed, would establish that someone else stabbed the victim. The Commonwealth‘s evidence, if believed, shows a homicide committed by Gray. The issues of self-defense or defense of another were not injected into this case at trial by either the Commonwealth or the appellant. That being so, the failure to charge upon the subject was not error. 421 Pa. at 574, 220 A. 2d at 809.2 An analogous result was reached by the Superior Court as to the privilege to eject trespassers when that right was not relied on by the accused. Com. v. Zubik, 194 Pa. Superior Ct. 248, 166 A. 2d 666 (1960). There is no reason in this particular situation to distinguish the doctrines of self-defense and defense of another from those of homicide by misadventure and
Moreover, we have repeatedly held that self-defense is an affirmative defense and that the accused has the burden of proving it by a fair preponderance of the evidence. Com. v. Winebrenner, 439 Pa. 73, 265 A. 2d 108 (1970); Com. v. Johnston, 438 Pa. 485, 263 A. 2d 376 (1970); Com. v. Commander, 436 Pa. 532, 260 A. 2d 773 (1970). Since Gray has specifically denied the stabbing, he certainly could not sustain this burden and thereby avail himself of this defense. Accordingly, the refusal to so charge was not error.
Appellant next argues that the trial judge placed undue emphasis upon the definition of the various degrees of homicide to the prejudice of the accused. Our reading of the record demonstrates that the trial judge initially defined the categories of homicide (ten pages of the record) followed by a review of the evidence (twenty-seven pages of the record). A brief reiteration of hornbook law on the degrees of homicide (one page of the record), along with a reminder of the presumption of innocence, then concluded the charge. It is this brief reiteration of the law involved which allegedly prejudiced the appellant, prompting counsel‘s objection.3 Viewing the charge as a whole, we cannot conclude there was undue emphasis engendering any prejudice whatsoever.
Since Stephens had been acquitted earlier, counsel for the appellant requested the trial judge to charge that this acquittal was evidence sufficient to impeach
In support of this motion, appellant cites the practice of several jurisdictions. With all due deference to these other jurisdictions, such procedure is not employed in this Commonwealth. While this Court long ago recognized that the denial of the right of summation by counsel to a criminal jury was an abridgment of the accused‘s constitutional right to full representation by counsel, Stewart v. Com., 117 Pa. 378, 11 A. 370 (1887), it nowise follows that the same deprivation occurs involving the order of summation.5
Appellant lastly argues that the prosecution should have been directed to call the victim‘s father, an eyewitness, to testify as a Commonwealth witness. At the trial of John Stephens, Mr. William Brown testified that Stephens, with something in his hand, was on top of the victim and, as Stephens stepped away, the victim staggered away from Stephens. At the closing of the prosecution‘s case, the district attorney stated he did not intend to call Mr. William Brown whereupon the defense requested a bench warrant for Mr. Brown in order to call him. The defense, however, did not call Mr. Brown; nor was a request made to re-oрen the case to permit his testimony in defense. “Pennsylvania decisions have long recognized that in criminal tri-
Judgment of sentence affirmed.
DISSENTING OPINION BY MR. JUSTICE EAGEN:
In good conscience I must dissent.
The trial court rejected a specific request by defense counsel to instruct the jury on the law of self-defense. In my view such an instruction was required
To substantiate my conclusion, it is necessary to refer to Gray‘s own trial testimony. His testimony may be summarized as follows:
On the date involved, Gray and John Stephens traveled from their home town of Chester to the Sharon Hill section of Darby Township, Delaware County, to visit a cousin of Stephens. The cousin was not at home, so they proceeded in the direction of the residеnce of a girl friend. As they walked south on Ash Street, they were accosted by twelve to fifteen members of the “alley gang” led by Brown, who started to pursue them and threw pieces of brick at them. Stephens and Gray walked, sometimes backwards, to a nearby police station, but found it locked since it was Sunday. Some of the pursuers then started to “move in” on Stephens and others on Gray. At this time, Stephens and Gray were standing severаl feet apart from each other. Gray grabbed two pieces of brick thrown at them, but one of the members of the gang pointed a gun at him and told him to drop them. Gray urged Stephens to run, because “there was too many of them.” Gray then started to run, but was called back by Stephens. A brick then hit Gray in the area of the left ear and knocked him down. After a short interval of darkness, he looked up and saw some of the gang “trying to gеt Stephens” and Brown with “a hold” on Stephens. Gray was in fear of his life, as well as that of Stephens, and “went back . . . to fight . . . for both of our lives” and “to help free Stephens . . . so he could run.” He hit Brown with both hands and backed away. He then yelled to Stephens “to come on” but Stephens said “he will give it a go or try“, and he hit Brown and knocked him down. Gray again yelled to Stephens to “come on“, and the “guy” with the gun waved it in
While Gray denied stabbing Brown, this was only a portion of his testimony, and the credibility of the testimony in its entirety was for the jury. And, as we have said in a multitude of decisions and as recently as April 22, 1970, in Commonwealth v. Ewing, 439 Pa. 88, 264 A. 2d 661 (1970), a jury may reject one part of a defendant‘s testimony and still believe another portion therеof. Given the fact that the jury disbelieved Gray‘s denial that he stabbed Brown, as the verdict indicates, it could still believe the remaining portion of his testimony, and if this testimony was sufficient to establish the possibility that the stabbing was committed in a legitimate act of self-defense, as I conclude it was, then the issue was for the jury under proper instructions from the court. In other words, if there was any testimony which might lead the jury to conclude that the stabbing occurred in a legitimate act of self-defense, the court was obliged to submit the issue to the jury. Cf. Commonwealth v. Beach, 438 Pa. 37, 264 A. 2d 712 (1970). The trial court by ruling out the issue of self-defense thereby limited the jury to passing on the credibility of Gray‘s testimony that he did not stab Brown and denied the jury its right to resolve the truthfulness of the remaining portion of his
In Commonwealth v. Johnston, 438 Pa. 485, 263 A. 2d 376 (1970), we recently reiterated the conditions which must be satisfied to successfully invoke the defense of self-defense where the slayer kills in order to savе himself from death or great bodily harm.
“As a general proposition, a person is justified or excused in killing in defense of another person when, and only when, the circumstances are such that the latter person would be justified or excused if he had committed the homicide in his own defense. A person interfering in a difficulty in behalf of another simply steps in the latter‘s shoes; he may lawfully do in another‘s defense what such other might do in his own defense but no more; he stands on the same plane, is entitled to the same rights, and is subject to the same conditions, limitations, and responsibilities as the person defended; and his act must receive the same construction as the act of the person defended would receive if the homicide had been committed by him. This rule may be subject to qualification based on accused‘s lack of knowledge of the facts and сircumstances; but in general it is necessary and sufficient to justify or excuse a homicide in defense of another that neither the person defended nor the defender shall be at fault in bringing on the difficulty, or that, if he has provoked the attack, he shall in good faith withdraw from the combat before the killing; that the danger, real or apparent, to the person defended shall be of death, great bodily harm, or a felony; that it shall be present, imminent, and impending, and not a past danger; that either the person defended shall be in real danger of death, great bodily harm, or some felony at the time, or it shall be reasonably apparent to the slayer, or he shall honestly and reasonably believe, that the person
In applying these two doctrines in conjunction with one another, the accused in going to the defense of another under all the conditions set forth above does not automatically forfeit the right to assert the defense of self-defense because he failed to retreat or did thrust himself into the difficulty. It is his right to go to the defense of another in the proper circumstances, and he, therefore, has no duty initially to rеtreat nor does he necessarily provoke the difficulty thereby.3 Cf. Commonwealth v. Johnston, supra.
In this case, if Gray had a reasonably founded belief that Stephens was in imminent peril of death or great bodily harm, and it was necessary to kill Brown to save Stephens therefrom, he had the right to take Brown‘s life on Stephen‘s behalf, and in determining the existence or nonexistence of such a reasonable be-
By this opinion I indicate no view on the credibility of Gray‘s testimony or the merit of the issue that he stabbed Brown in an act of self-defense, but merely say that these questions were for the jury to resolve under proper and adequate instructions.
Mr. Justice ROBERTS joins in this dissent.
Behrend, Appellant, v. Yellow Cab Company.