Com. v. Winebrenner

• Citation: 439 Pa. 73,265 A.2d 108
• Parties: COMMONWEALTH of Pennsylvania v. Karen Elaine WINEBRENNER, Appellant.
• Decision Date: 28 April 1970
• Court: United States State Supreme Court of Pennsylvania

Page 108

265 A.2d 108

439 Pa. 73

COMMONWEALTH of Pennsylvania v. Karen Elaine WINEBRENNER, Appellant.

Supreme Court of Pennsylvania.

April 28, 1970.

As Corrected April 30, May 6 and 20, 1970.

F. Emmett Fitzpatrick, Jr., Joseph Michael Smith, Philadelphia, for appellant

Oscar F. Spicer, Dist. Atty., Gettysburg, for appellee.

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

OPINION OF THE COURT

BELL, Chief Justice.

Thomas Winebrenner was shot and killed at approximately 7:00 o'clock on the night of Tuesday, August 20, 1968. A few hours after the killing, the victim's spouse, Karen Elaine Winebrenner, was arrested and charged with the murder of her husband. Her trial by a Judge and jury resulted in a verdict of guilty of murder in the second degree. Defendant, through her attorneys, then filed a motion in arrest of judgment and a motion for a new trial, each of which was denied. Karen Winebrenner was sentenced to undergo imprisonment for a term not to exceed twelve years. From the judgment of sentence she took this appeal.

Defendant contends (1) that the evidence was insufficient to prove her guilty of any crime charged, and (2) that the evidence Before discussing the evidence and the contentions of the defendant, we think it would be helpful if we first considered several pertinent principles of law.

was insufficient to prove malice, and (3) that her admissions proved that she shot in self-defense, and (4) that the Court committed reversible errors in its charge concerning self-defense. None of these contentions has any merit.

In Commonwealth v. Commander, 436 Pa. 532, pages 536, 537, 538--539, 260 A.2d 773, pages 776--777, the Court said: "'* * * 'Murder * * * is defined as an unlawful killing of another with malice aforethought, express or implied.' * * *

"'Malice ¹ express or implied is the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances. (Accord: Commonwealth v. Chermansky, 430 Pa. 170, 242 A.2d 237; Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768; Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911.) * * *"

'The test for the Sufficiency of evidence to support a murder conviction is likewise well settled. In Commonwealth v. Frye, 433 Pa. 473, 252 A.2d 580, the Court affirmed a conviction of murder, and said (page 481, 252 A. page 584): 'It is hornbook law that the test of the sufficiency of the evidence--irrespective of whether it is direct or circumstantial, or both--is whether, accepting as true all the evidence and all reasonable inferences 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. Finnie, 415 Pa. 166, 202 A.2d 85; Commonwealth v. Burns, 409 Pa. 619, 634, 187 A.2d 552; Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861; Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968).' See also, Commonwealth v. Terenda, 433 Pa. 519, 252 A.2d 635; Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768, supra; Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884. * * *

"'The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom, And may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being: ² Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852, supra; Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65; Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317."' Accord: Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85, supra.

All other kinds of murder, except murder which is perpetrated by means of poison or by lying in wait or by any other kind of willful, deliberate and premediated killing, or which is committed in the perpetration of or the attempt to perpetrate certain statutorily enumerated felonies, are murder in the second degree. Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701. See, Commonwealth v. Ahearn, 421 Pa. 311, 317, 218 A.2d 561; Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85, supra; Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911, supra.

MOTION IN ARREST OF JUDGMENT

In Commonwealth v. Terenda, 433 Pa. page 523, 252 A.2d page 637, supra, the Court said: 'In Commonwealth v. Tabb, 417 Pa. 13, page 16, 207 A.2d 884, page 886, the Court said: 'In passing upon such a motion (in arrest of judgment), the sufficiency of the evidence must be evaluated upon the Entire trial record. ³ All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion is to admit all the facts which the Commonwealth's evidence tends to prove. See, Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65, 93 A.L.R.2d 616 (1959), and Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956). * * *"

Considered in the light of the abovementioned standards, tests and principles, the salient facts are as follows: Mr. and Mrs. Winebrenner experienced marital difficulties prior to August 20, 1968, the day the homicide was committed. Four days before the shooting, the defendant stated to the check-out clerk at the local grocery store: 'Oh, that Tom, I will kill him or something. I just can't keep living like this.' On the night of the homicide, at approximately 7:30 P.M., Charles Rouch, the Chief of Police of the township where the Winebrenners lived, received a telephone call in which the caller, whom the Chief of Police identified as the defendant, said: 'Charles, come quick! This is Butch (Karen) Winebrenner. Tom tried to kill me; I shot him! And I think he is dead!' Thelma Seig, a neighbor of the Winebrenners, testified that she also received a telephone call from the defendant on the night in question, in which the defendant said: 'Come quick, I need help. I shot Tom.' Mrs. Seig also testified that defendant told her that '(Tom) had threatened to kill her and she had shot him.'

When the ambulance arrived, the medical personnel found the dead husband lying on his back behind the house occupied by him and the defendant. ⁴ The victim's feet were pointed in the direction of the house, with one foot resting on the lowest step. There was a hole in his abdomen, caused by a shotgun fired from close range. ⁵ A State Police firearms expert testified that in his opinion the fatal shot was fired when the muzzle of the shotgun was approximately ten feet from the victim. No weapon, and nothing of any unusual nature, was found in the victim's hands or near his body. The defendant was in the kitchen, inside the house. A shotgun with an odor of having been recently fired was on the sink counter and an expended shell was on the floor in the kitchen. Several shells were found in defendant's jacket which were of the same type as the expended shell. A witness for the Commonwealth later testified that defendant was an experienced hunter.

The aforesaid evidence was undoubtedly sufficient to support a finding or verdict that defendant shot and killed her husband and was guilty of murder in the first or second degree.

Malice

Defendant next contends that, even admitting she had unlawfully killed her husband, the Commonwealth failed to prove beyond a reasonable doubt that the killing was malicious. We disagree.

It is true that malice is an absolutely essential ingredient of murder (cases supra). Legal malice may be inferred and found from the attending circumstances, and, like the specific intent to kill, may be inferred from the intentional use, without legal excuse or legal justification, of a deadly weapon on a vital part of another human body: Commonwealth v. Troup, 302 Pa. 246, 252, 253, 153 A. 337; Commonwealth v. Green, 294 Pa. 573, 581, 144 A. 743; Commonwealth v. Wucherer, 351 Pa. 305, 311, 312, 41 A.2d 574. Cf. also, Commonwealth v. Ewing, Pa., 264 A.2d 661 (1970); Commonwealth v. Drum, 58 Pa. 9 (1868).

In Commonwealth v. Troup, 302 Pa. pages 252--253, 153 A. page 340, supra, the Court said: 'The fifth assignment complains of the statement in the charge that a presumption of illegal killing arises where death is intentionally inflicted by the use of a deadly weapon directed to a vital part of the body. Proof of such conduct raises no presumption of law that the murder is of the first degree, But justifies an assumption of fact that malice and the intention to kill existed.'

In Commonwealth v. Green, 294 Pa. page 581, 144 A. page 746, supra, the Court said: "* * * when a responsible person, without authority and under such circumstances as indicate deliberation without apparent provocation or necessity, Wounds another in a vital part with a deadly weapon, then malice is to be inferred:' Wharton's Criminal Evidence, vol. 2 (10th Ed.) § 764.'

In Commonwealth v. Wucherer, 351 Pa. page 311, 41 A.2d page 577, supra, the Court said: '* * * where a felonious homicide ⁶ is proved, malice is Presumed to have existed, not conclusively, Not as a so-called 'presumption of law' or irrebuttable presumption, But as a presumption of fact, which, as stated in Commonwealth v. Kluska, 333 Pa. 65, 69, 3 A.2d 398, 401, 'is but a prima facie inference which can be rebutted by testimony to the contrary' either by the accused himself denying such malice or by any other appropriate evidence.' Cf....