Com. v. Gray

• Decision Date: 12 November 1970
• Citation: 441 Pa. 91,271 A.2d 486
• Parties: COMMONWEALTH of Pennsylvania v. Alvin C. GRAY, Appellant.
• Court: Pennsylvania Supreme Court

Page 486

271 A.2d 486

441 Pa. 91

COMMONWEALTH of Pennsylvania v. Alvin C. GRAY, Appellant.

Supreme Court of Pennsylvania.

Nov. 12, 1970.

Rehearing Denied Dec. 23, 1970.

Melvin E. Caine, Media, for appellant.

Stephen J. McEwen, Jr., Dist. Atty., Ralph B. D'Iorio, Vram Nedurian, Jr., Asst. Dist. Attys., Media, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION

JONES, Justice.

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 were 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 appears 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 succeeded 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; (2) it was error for the trial judge to refuse to charge on self-defense or defense of another; (3) the trial judge placed undue emphasis upon the definition of the various degrees of murder, thereby prejudicing appellant; (4) it was error for the trial judge to refuse to charge that the previous acquittal of Stephens was evidence sufficient to impeach the credibility of an eyewitness; (5) the trial judge erred in ordering the closing argument to be made First by the appellant without a later opportunity to rebut the Commonwealth's later closing argument; and (6) the prosecutor should have been directed to call an eyewitness. The additional facts necessary for a complete understanding of these issues will be developed in this opinion.

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 the evidence and all reasonable inferences arising therefrom, upon which if believed the jury could properly have based 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, 266 A.2d 756, 758 (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 knife. On the other hand, while there was conflicting testimony by the Commonwealth's witnesses as to whether Stephens or Gray stabbed the victim, all agreed that Gray did have a knife. In any event, it was not necessary, under the circumstances, for the Commonwealth to offer proof which would exclude the possibility that Stephens alone committed the fatal stabbing in oder to prove Gray's guilt beyond a reasonable doubt. Com. v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960). Viewing all the evidence presented, the jury could find not only that Gray stabbed the victim but also that he did so maliciously. Cf. Com. v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970); Com. v. Commander, 436 Pa. 532, 260 A.2d 773 (1970). Read in the light most favorable to the Commonwealth, we find the evidence sufficient to support a conviction of murder in the second degree.

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; 40 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); Commonwealth v. Breyessee, 160 Pa. 451, 28 A. 824 (1894).' Commonwealth v. Johnston, 438 Pa. 485, 489, 263 A.2d 376, 379 (1970). Although the case law is scant, this Court has recognized the limited doctrine of defense of another. See, Com. v. Russogulo, 263 Pa. 93, 106--107, 106 A. 180, 185--186 (1919).

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. To 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.Super.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 the privilege to eject trespassers when the accused does not avail himself of these defenses. 'Where the defense is that the accused did not kill or participate in the homicide, instruction on self-defense is not necessary.' 41 C.J.S. Homicide § 379 n. 16 (1944).

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. 69, 265 A.2d 108 (1970); Com. v. Johnston, 439 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 the credibility of the eyewitness. ⁴ Appellant's basis for this argument is certain language in Com. v. Quaranta, 295 Pa. 264, 271, 145 A. 89, 92 (1928): 'Furthermore, the fact of acquittal of a witness (two co-defendants had been acquitted earlier), as shown by verdict and judgment, is competent proof to affect the credibility of eyewitnesses who have testified to witness's presence at the homicide and participation therein.' We certainly agree that the acquittal is Competent proof to Affect the credibility; but this language should not be interpreted, as appellant apparently desires, to achieve a result that would require the trial judge to essentially direct the jury to disregard the testimony of the eyewitnesses. The possible bases upon which Stephens was acquitted are myriad. Indeed, Stephens may have been acquitted because his jury may have decided that Gray was the guilty party. There is no merit in this contention.

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