Com. v. Miller

• Decision Date: 20 April 1972
• Citation: 448 Pa. 114,290 A.2d 62
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth C. MILLER, Appellant.
• Court: Pennsylvania Supreme Court

Page 62

290 A.2d 62

448 Pa. 114

COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth C. MILLER, Appellant.

Supreme Court of Pennsylvania.

April 20, 1972.

John J. Krafsig, Jr., Harrisburg, for appellant

Keith B. Quigley, Lemoyne, for appellee.

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

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant was indicted for murder, voluntary manslaughter and involuntary manslaughter in connection with the fatal shooting of Edward Louden on March 11, 1968, in Watts Township, Perry County. After a jury trial, appellant was found guilty of second-degree murder. Post-trial motions were denied and the appellant was sentenced to a term of five to twenty years' imprisonment. This appeal followed.

The appellant provided the only eyewitness testimony concerning the homicide. His version of the fatal encounter was that the deceased, in the company of one George Miller, arrived at appellant's home--a single-room dwelling--at approximately 9:30 on the night of the shooting. Shortly thereafter, George Miller departed, leaving appellant and the deceased alone in appellant's home. Appellant testified that the deceased began drinking port wine which appellant had purchased earlier in the day, became intoxicated and threatened to kill appellant. During this diatribe, appellant was lying in bed but, upon hearing a click, which appellant interpreted as 'breaking the gun,' he arose and discovered the deceased rising from a chair with appellant's shotgun in his possession. Appellant allegedly grabbed the barrel of the shotgun, wresting it from the deceased's grasp, reversed the gun so that it was pointing in the direction of the deceased and attempted to apply the safety mechanism which necessitated fingering the trigger. At this point, the deceased allegedly shoved the appellant, causing him to fall backwards and, while appellant was falling, the gun discharged, fatally striking the deceased in the area of the chest.

In support of his alternative motions, appellant advances several contentions: (1) the evidence was insufficient to sustain the verdict of second-degree murder; (2) the court below erred in instructing the jury on self-defense; (3) appellant's confession was involuntary and, therefore, inadmissible; (4) the court below erred by stating its opinion regarding voluntary manslaughter; (5) appellant's case was prejudiced by the introduction of inflammatory photographs; (6) failure to record the voir dire examination of jurors deprived appellant of a meaningful appeal; and (7) the court below erred in instructing the jury that, should it return a verdict of guilty of first-degree murder, it would not be left to the jury to determine the sentence.

In support of his first contention, appellant relies on his own testimony, both in his confession and in his direct testimony, that the shooting was accidental and that of a witness for the Commonwealth, who testified that appellant, subsequent to the fatal shooting, stated to the witness that the killing was in self-defense. Appellant's argument relates to credibility, not sufficiency. '. . . (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 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.' Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970); Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970). Of course, the record must be considered and read in the light most favorable to the Commonwealth. Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971).

In this regard, it is well to note the differences between appellant's version as contained in his pretrial statement to the police and appellant's version as contained in his trial testimony. In his confession, appellant admitted that he turned himself in at the police station, 'to turn in that I shot a man.' He then proceeded to give the following account of the events surrounding the killing:

'A. I got up and sat on the side of the bed. Miller had left. The longer (the deceased) sat the more he said that he would kill me and his brother, Ernest Roy Louden. I laid down with no covers on but I was awake. This is not the first occurrence that this has happened. He walked back into the kitchen again and sat at the table. I have three chairs over there. Then he started this procedure about killing my uncle and me.

'Q. Did he have the gun at this time?

'A. He had picked up the gun. It was in the corner by my bed. I had three splatter loads and one pumpkin ball. They were on the floor. I thought he loaded the gun as I heard a click. At this time I was setting up and he came over towards me and pointed the gun at me. I grabbed the barrel of the gun and turned it around and Pointed the gun at him. (Emphasis supplied.)

'Q. Did you have the gun pointed at him direct?

'A. When I grabbed the gun and turned it around I had the gun pointed more over his head than directly at him.

'Q. What took place then?

'A. He pushed me and I fell down on the floor right by the bed and my head hit the bed. The gun went off. As soon as the gun went off, he fell. I think that I threw the gun on the bed.'

At his trial, his account of the events was somewhat different:

'A. . . . I immediately got out of bed and started out toward him. As it shows on the diagram here, when I got to the refrigerator, I saw he had the gun, he was in the chair, he was getting out of the chair, which is the arm chair, a padded arm chair. . . .

'A. When I came out, I had two choices. One choice would be to take a chance to get out the door, which opened inwardly, he was getting out of the chair with the gun which he had in his left hand, but he was getting out, and I definitely knew I didn't have any chance to get through the door before he actually shot me, like I said, I didn't doubt it a bit, and I wouldn't have had any chance to get out. And the other choice, then, would be trying to talk him out of it as I did in the past, and when he got out of the chair he stepped to the right, his right, of the chair. . . .

'A. Well, he was in the chair, he was getting up, and he took a step to the right of the chair, with the gun pointed at me, but he was sort of weaving. . . .

'A. (The deceased) got out of the chair and, as I said, he stepped to the right, but he had the gun on me, like I said, he was standing there with the gun on me, and I immediately grabbed the barrel, here (indicating), real quick, I grabbed it and pointed the gun up in the air, and when he gave me the push, my arm went out like this (indicating), I dropped my arm to catch myself, and the weight of the gun, I presume, or my own weight, it could have been the weight of the gun, when I come down, it was cocked and it went off. I fell backward, I don't know whether it struck me, like the stock or something, but I lost my balance and fell, and my head hit the bed.'

Thus, in his confession, unlike his testimony, appellant admitted pointing the gun at the deceased. Furthermore, the Commonwealth's expert pathologist testified that the path of the fatal bullet established that it intered the body at a downward flight, rebutting appellant's testimony that the gun discharged while appellant was in the act of falling. The jury obviously believed that the account contained in appellant's pretrial confession was closer to what actually occurred. Appellant's admission that he fired the fatal shot, after pointing the gun at the victim, when coupled with the pathologist's testimony clearly constituted sufficient evidence to support a conviction of second-degree murder.

Appellant argues that his confession, similar to but more damaging that his direct testimony, should not have been admitted into evidence because it was involuntary. ¹ The facts surrounding the confession are as follows:

Following the shooting, appellant was driven to the Duncannon State Police Barracks by a neighbor. Upon entering the station, appellant was asked by the trooper on duty whether he could be of assistance. Appellant replied, 'I just shot my Uncle Ed.' ² The trooper directed no further questions to appellant but notified another trooper to return to the barracks. Trooper Montross testified that, upon receiving the radio communication, he returned to the barracks and immediately gave appellant the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Again, no further questioning was initiated until one officer Corbett arrived, whereupon appellant was again informed of his rights. Upon being told of his right to have an attorney present during any questioning, appellant mentioned the name of an attorney. Officer Corbett attempted to locate the attorney, but was told by appellant not to bother, that appellant would answer any questions. ³ Prior to initiating the questioning, appellant was read the waiver of his rights. Inquiry was made as to whether he understood the waiver, to which appellant answered in the affirmative; whereupon he then signed it. The questioning was then initiated and the statement copied by Officer Corbett, typed, read by appellant, re-read to appellant by Officer Corbett and finally signed by appellant on each page. On its face, the evidence exhibited a knowing and intelligent waiver of appellant's constitutional rights. Cf., Commonwealth v. Goldsmith, 438 Pa. 83, 263 A.2d 322 (1970). Appellant contends, however, that the statement was not voluntary since at the time it was given he was under the influence of medication. The testimony of the state troopers and one Lester Kumler, who accompanied appellant to the police station, was that appellant acted normally at all times, his gait was steady and his...