Com. v. Lowe

• Decision Date: 27 January 1975
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert LOWE, Appellant.
• Court: Pennsylvania Supreme Court

Page 765

333 A.2d 765

460 Pa. 357

COMMONWEALTH of Pennsylvania, Appellee, v. Robert LOWE, Appellant.

Supreme Court of Pennsylvania.

Jan. 27, 1975.

Rehearing Denied April 3, 1975.

[460 Pa. 358] Joseph Michael Smith, Philadelphia, for appellant.

James J. Wilson, Asst. Dist. Atty., Mark Sendrow, Asst. Dist. Atty., Asst. Chief, Appeals Div., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, Richard A. Sprague, First Asst. Dist.

Atty., F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for appellee

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

EAGEN, Justice.

Robert Lowe, the appellant, was convicted in a nonjury trial of voluntary manslaughter. Post trial motions were denied and Lowe was sentenced to ten years probation. This appeal followed.

Lowe initially contends the evidence was insufficient to support the finding of voluntary manslaughter, but, on the contrary, established the killing was committed in self-defense.

On appeal from a criminal conviction, the test for evaluating the sufficiency of the evidence is whether, viewing the entire record in the light most favorable to the Commonwealth, a finder of fact could reasonably have found that all elements of the crime charged had been proved beyond a reasonable doubt. Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). Read in the light most favorable to the Commonwealth, the instant record discloses the following pertinent facts:

On May 20, 1972, Lowe shot and killed Bernard Walker in a dispute between neighbors. At the time, Walker lived at 3231 Monument Street, Philadelphia. He had three stepsons: Kenny Jackson (aged 19); Larry Jackson (aged 17); and, Joseph Jackson (Jo-Jo, aged 15). Lowe lived two doors away at 3227 Monument Street with his wife and children. He had moved into the neighborhood eight months previously. The family of Sam DeShields occupied the house between the Lowes and the Walkers at 3229 Monument Street.

A few days prior to the fatal evening, Lowe had complained to the police that Neil Williams of 3222 Monument Street had raped his daughter Margaret. Neil was fifteen and Margaret fourteen. The police had taken Neil Williams into custody on May 15, 1972, for questioning regarding this alleged incident, but he was released when the girl admitted that the relations were consensual. Neil Williams was accompanied to the police station by his mother and brother, Robert Williams.

On the afternoon of May 20, 1972, Lowe came out on his porch and observed Robert Williams standing with Larry Jackson and Sam DeShields on the DeShields' porch next door. Lowe challenged Williams to a fight for comments Williams had made at the police station. Disparaging remarks were exchanged between the group of boys and Lowe. Kenny Jackson, overhearing the exchange from inside, emerged to accept Lowe's challenge. Before any blows were struck the fight was broken up by De Shields. As Kenny Jackson returned to his house, Lowe ran toward his own residence shouting that he was going to get a rifle and shoot someone. Momentarily, Lowe emerged from his house waving the rifle. He aimed at the group of boys still standing on the DeShields' porch, and fired at least one shot ¹ at Larry Jackson, as the individuals scattered into the house for cover.

Neighbors called the police. Lowe denied having a gun when questioned by the police. He was frisked and the first floor of his house was searched, but no weapon was found. At this point, Bernard Walker, the victim, rushed onto Lowe's porch and managed to punch Lowe before the police separated them. The police escorted Walker to his home, and cautioned him to remain there. Lowe was also instructed to stay indoors.

After the police left the scene, however, Walker stepped over onto Lowe's porch and knocked on the door. When Lowe answered Walker stated he wished to speak with Lowe 'man-to-man.' Lowe slammed the door in Walker's face. Walker then stepped over onto the DeShields' porch, and was conversing with a group of boys, when Lowe stepped out of his house with the rifle and fired a shot at Walker, but the shot missed. The group on the DeShields' porch scrambled toward the vestibule of the DeShields' house. Lowe leaned over the banister, separating the two porches, and fired a second shot which struck Walker and fatally wounded him.

To rebut the Commonwealth's evidence, Lowe took the stand. His testimony, in direct contradiction to the Commonwealth's eyewitnesses, was that Walker, at the head of a shouting mob, banged on Lowe's door. Lowe slammed the door shut, and started to the back door with his family, but members of the group were coming over the back fence. Slamming the back door shut, Lowe grabbed his...