*1 A.2d 545 Pennsylvania COMMONWEALTH cases). (two TAYLOR, Appellant Jr., Joe Pennsylvania. Supreme Court Nov. 1974. Submitted May Decided 1975. *2 Needleman, Needleman, Needleman, T.
Abraham appellant. Eisman, Philadelphia, for Tabb & A. Atty., Richard Fitzpatrick, Dist. F. Emmett Goldblatt, Asst. Atty., H. Steven Sprague, Asst. Dist. 1st J. Philadelphia, Div., Maxine Chief, Appeals Atty., Dist. Deputy Gafni, Atty., Abraham J. Stotland, Dist. Asst. appellee. Atty. Law Dist. O’BRIEN, ROB- EAGEN, J., JONES, C.
Before MANDERINO, POMEROY, JJ. ERTS, NIX OPINION NIX, Justice. murder, charged Taylor,
Appellant, Jr., was with Joe manslaughter operating involuntary an automobile death of fourteen- influence of alcohol under the judge year-old Trial was before a Herbert Palmer. had jury finding in a sitting resulted without Appellant con- degree. was also second operating an the influence automobile under victed subsequently motions were filed and alcohol. Post-trial imposed probation years sentence of ten A denied. term from eleven and and a on the murder imprisonment (with twenty-three months one-half charging appel- recommended) on work bill release operating influence motor under the vehicle lant with *3 appeals follow. These alcohol. appeal presented wheth- in the is sole issue instant er sufficient sustain a conviction the evidence was disagree- degree. The in the second crux murder nec- malice established the ment is whether evidence essary of murder. verdict sustain
“ de ‘To a conviction either sustain killing gree, must establish that the evidence McFadden, v. committed with Commonwealth malice. v. (1972).’ 277, A.2d Commonwealth 292 324 448 Pa. (1974). 508, 510, 716, Coleman, 455 Pa. 318 A.2d 717 ‘ or express kill of an intent to consists either [Malice] dispo bodily great harm, or of a inflict “wickedness heart, cruelty, of con sition, hardness recklessness duty” regardless indi sequences a mind of social probability disregard cating unjustified for the an great bodily indiffer harm and extreme death an v. Commonwealth of human ence to value life. 525, (1963).’ Common Carroll, 412 A.2d Pa. 194 911 237, 175, Chermansky, 170, 242 A.2d Pa. wealth v. 430 560 Coleman, (1968). su v. Commonwealth
240-41 See may legal inferred pra. be existence of malice ‘[The attending act of the found from circumstances Pa., resulting Bowden, v. the death. Commonwealth Coleman, su (1973).’ v. A.2d 309 714 Commonwealth 717; at Commonwealth pra, 510, Pa. A.2d 455 318 Lawrence, Chermansky supra; Commonwealth v. v. (1968).” 188, 768, Com 193, A.2d 771 428 Pa. 236 610, 17, 22, Pa. A.2d Boyd, monwealth v. 461 334 (1975). 613 sufficiency of
And the test of
is:
evidence
“ ‘[w]hether, accepting
and all
as true
the evidence
all
upon
if
inferences therefrom
reasonable
[the]
properly
believed the
could
have based
[finder
fact]
verdict,
beyond
prove
it
its
sufficient
is
law
guilty of the
reasonable doubt that
is
defendant
crime
convicted.’
or crimes
which he has been
Bayard,
506, 509,
Commonwealth v.
458 Pa.
309 A.2d
579,
Paquette,
Pa.
(1973); Commonwealth
451
581
regard
(1973).
In
it must be
250, 301 A.2d
this
837
reject
right
noted that
finder of fact
has
part
testimony
all of
if uncon-
the defendant’s
even
Chermansky,
tradicted. Commonwealth v.
Pa. at
430
174,
Several driving high testimony speed (the at indi- lant rate per travelling he and miles cated that was between 60 hour), pass three another strike of the vehicle and two hurling youngsters, bodies into the The vehicle their air. by appellant driven to the next intersection continued stopped waiting traffic where other were vehicles signal change. Appellant then his vehicle reversed accident. and returned towards the scene of the One ap- eye-witnesses that after observed testified he pellant prog- youngsters his the two and continue strike stop attempt began ress, his horn in an that he blow only stopped appellant. Appellant respond and did not other vehicles when he reached the intersection where signal. stopped waiting for the had traffic testimony that the at the scene stated The officer lying Beatty body on Concourse was South Ronald traffic, west of 99 feet in the eastbound Drive lane lying on the Palmer Herbert was 42nd Drive. Street point of at a Drive lane South Concourse eastbound were two bikes of 42nd Street Drive. The 115 feet west 42nd point top feet west on of each other at a highway. the center of the about Street Drive in the front Buick, a dent appellant’s vehicle, a had grill. The wind- front near the hood on the left side places on the at two cracked from the outside shield was confronting appellant, officer Upon left side. appellant’s strong on of alcohol of a odor aware was gait speech and his as slurred described his breath. He required the assistance unsteady (appellant) so he daughter the officer stand. son, Surgeon on the 7 P.M. Police examination An appel- in the conclusion evening resulted same intoxicating liquor and the influence under lant *5 operate safely. was not able to a motor The doc- vehicle although tor elapsed testified that had be- several hours examination, appellant tween the incident and the was intoxicating liquor. still under influence breathalyzer test, P.M., registered a administered 6:40 reading of .10 blood alcohol. appellant
In defense, en route his stated that he was driving approxi- home, from to his that was work he mately attempted pass per miles hour he to 30-35 when bicycle another vehicle. He that he a at least said saw lengths in that al- two or three car front him and though applied brakes, he his skidded and his automobile bump top that on the of the he a wheel and heard stop immediately. further hood that He he did not but day only at about testified that he had drink one that testify daughter son that 10 A.M. His were called and drinking. Appellant they not their father had observed coming directly work, he from also testified that was trip home, which travelling a his normal route to he usually approximately hour. However takes one-half time of explain why at the was still en route failed to he time twenty from the incident, hour minutes one and Further, ap- place employment. he he left his stated dry and and was clear pellant that the weather conceded impair of the his view no obstructions that there were travelled he had Appellant highway. also testified years and aware number this route a area pool recreational location of the frequented this section. number of children sufficiency the evidence determining In death where degree finding of second support a to de accident, crucial it is a motor vehicle from results surround circumstances the facts whether termine distinguishes mur reflect malice ing incident addressing this is- In types of homicide. from other der sue, this Court Commonwealth v. Pa. Aurick, 342 (1941), 19 A.2d stated: proof hand, negligence sup-
“On the other involuntary manslaughter port need not be *6 exhibiting reckless, proof wicked of or omissions acts Negli- disregard safety the of others. wanton of and high degree support gence that will a recognized degree, in second this court the as 218, McLaughlin, in 142 Commonwealth v. 293 Pa. A. 686, Mayberry, 195, In A. v. 290 Pa. 138 213. Com. opinion present 688, court, by in this an the Chief Jus- appellant tice, at bar dashed ‘Had the down said: Highland wantonly, recklessly and in and dis- avenue another, regard consequences against hurled his car street, person on or into a crowd or over a sidewalk then, considering resulted, kind in- death the and pre- strumentality is, not that an we are automobile ought pared say to that not to face the same conse- he him if he had ac- quences that would meted out to be wickedly complished by firing a wantonly and death Cal.App. gun. People Brown, 664, P. v. 200 727.’ Pa.Super. 404, 408, Beattie, that court In Com. recklessly wantonly, in ‘If this defendant said: disregard consequences car into the Zurn drove his say prepared to resulted, not that car and death we are peril probable peril or to human “a consciousness of (Shorter v. imputed to to was not be defendant.” life 985) State, would Tenn. which 247 S.W.2d requisite in establish the element of malice which is ” (Emphasis original) Id. at 19 A. murder.’ 2d at 921. presented fact, we to trier of are
From the evidence to find reck- that there was sufficient basis satisfied regardless consequence of social and a mind lessness presence of duty necessary mal- to establish which is driver, the exces- The condition of the intoxicated ice. speed travelling, the distance which he was rate sive bicycles propelled impact, upon bodies were were this area where children awareness was an physical likely traverse, any climatic absence hap- explain condition could or contribute to the stop pening appellant’s accident failure immediately after all exhibit the impact, wickedness cruelty heart, and reckless- disposition, hardness of degree. ness associated with murder the second brief, attempts con appellant, in his The inten requiring strue Auricle decision as deliberate find that tion to He would have us strike the victim. present the vic malice is it not unless is established “intentionally operator of the tim run down” recognize view the distinction vehicle. fails Such degree presence between and second murder. first mur prerequisite of a intent to deliberate kill while a *7 degree in the required in is der the first not for murder v. pointed degree. out in Commonwealth second As (1928), 218, 222, 213, McLaughlin, 142 215 293 Pa. A. present malice is either it the ac is shown that where recklessly or cused intended to strike the victim “was argument disregardful safety, . . .” of [his] appellant perceive reck of to that between the fails culpable necessary support negligence lessness or involuntary manslaughter, see Commonwealth 359, spe Busler, (1971), Pa. A.2d and the 783 prerequisite cific intent to kill which a of murder is degree, the first there is reckless a class of wanton and conduct which manifests such an extreme indifference negligent human life the value of which transcends the killing supports reaches the level of the malice degree. in a verdict of murder the second accept argument not it is cru- We therefore do that just appellant the victim until cial did not see a impact. evidence, before the moment Under the properly finder of conclude that fact could intention- represented dis- appellant al acts of wanton a and willful regard risk to life created of the unreasonable justified equally trier Further, conduct. of fact was peril appellant imputing in to the a consciousness probable peril human his actions caused. life instrumentality may used That motor be the a vehicle long in has been commission of the crime murder legal na- recognized by is not the authorities. The issue instrument, of the ac- the frame of mind ture but deployment tor in the instrument. aforethought and
“If the defendant acts with malice auto- state of mind strikes another with his with such mobile, thereby causing latter, the of- the death of the murder, any same if other instrument fense is as employed with mental destruction had been like may Therefore, state. malice be inferred when wantonly, recklessly driver of motor vehicle acts a manifesting depravity disregard hu- a of mind and life, man as he drives an such when automobile directly imperil without manner as human life and street, regard presence persons busy for the on a degree and his conviction murder the second will when, be sustained as a direct result of such reckless- person Anderson, wantonness, ness and is killed.” Procedure, 3 Wharton’s Criminal Law § (Footnotesomitted). (1957). 137-138 Encyclopedia Law, See Huddy, also of Automobile § seq. et (1931). 71-72 Judgments of affirmed. sentence concurring opinion ROBERTS, J., in which filed a *8 J., JJ., join. JONES, MANDERINO, C. and and EAGEN (concurring). ROBERTS, Justice sup I in the result because the concur record finding appellant consciously disregarded ports an high unjustified extremely and risk that his actions bodily might another, cause death or serious harm Scott, maliciously. LaFave & A. therefore acted See W. (1972); cf. 18 Pa.C.S. on Handbook Criminal Law 70§ (1973); compare Penal 2501(a) Model 302(b)(8), §§ (1974). Code §210.2 JJ., MANDERINO, J.,
JONES, C. EAGEN concurring opinion. join in this