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COMMONWEALTH of Pennsylvania v. Leroy GAUSE, Jr., Appellant

Supreme Court of Pennsylvania1975-01-27No. No. 318
459 Pa. 595330 A.2d 856

Summary

Holding. The trial court properly admitted the victim's dying declaration identifying the defendant as the shooter, and the evidence was sufficient to support a conviction for murder in the second degree. The judgment of sentence is affirmed.

Leroy Gause was convicted in a bench trial of second-degree murder and conspiracy in connection with the shooting death of Herman Press. Gause argued that a statement made by the victim in a hospital emergency room—identifying Gause as the shooter—was inadmissible hearsay and that the evidence was insufficient to support a murder conviction rather than voluntary manslaughter or self-defense.

The court rejected both contentions. On the admissibility issue, the court held that the victim's statement qualified as a dying declaration because the circumstances—including five gunshot wounds, damage to vital organs, and the victim's own expressed belief that he was dying—permitted the inference that the victim believed death was imminent at the time of the statement. The court noted that no instruction to the victim about the severity of his condition was required for this determination. Regarding sufficiency of the evidence, the court found no indication of passion or necessity that would reduce the offense to manslaughter or justify a self-defense claim, and concluded that malice could be inferred from the use of a deadly weapon against a vital area of the victim's body.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Admissibility of dying declaration when declarant was not informed of wound severity
  • Whether circumstances establish victim's belief that death was imminent
  • Sufficiency of evidence to distinguish murder in the second degree from voluntary manslaughter
  • Whether malice may be inferred from use of deadly weapon on vital body part

Procedural posture

The defendant appealed his conviction in a nonjury trial for second-degree murder and conspiracy, raising challenges to the admission of evidence and the sufficiency of the evidence supporting the verdict.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

OPINION OF THE COURT

MANDERINO, Justice.

The appellant, Leroy Gause, Jr., was convicted in a nonjury trial on December 18, 1973, of murder in the second degree and conspiracy. Post-verdict motions were denied and appellant was sentenced to eight to twenty years imprisonment for the murder. Sentence was suspended as to the conspiracy conviction. This appeal followed.

During the evening of September 25, 1972, about 11:00 p. m., Herman Press was shot five times. Immediately after the shots were heard, the appellant and two other men were seen running away from the street area where the victim was found. About one hour later, the victim, who was undergoing treatment in the hospital emergency room, said to a detective who had entered the room: “Leave me alone, man, can’t you see I’m dying.” The detective, nonetheless, asked about the shooting, and the victim identified the appellant as the person who had shot him. Approximately thirteen hours later, the victim died. During the trial, the detective testified, over objection, as to the victim’s dying declaration.

Appellant first contends that the admission into evidence of the victim’s dying declaration was error. We cannot agree. Appellant does not challenge the validity of the dying declaration exception to the rule prohibiting the introduction of hearsay testimony. That exception allows the victim’s dying declaration to be introduced into evidence if at the time of the declaration the victim believed that death was imminent. Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224 (1973), Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972); Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971); Commonwealth v. Knable, 369 Pa. 171, 85 A. 2d 114 (1952). The appellant argues, however, that be cause there was no evidence that the victim was told about the critical nature of his wounds or was told that he was dying, the trial court erred in concluding that the victim believed his death was imminent. There is no requirement, however, that the victim be so informed. The test is whether, from all of the attending circumstances, it can be inferred that the declarant was conscious of approaching death. 5 J. Wigmore, EVIDENCE § 1442 (3rd ed. 1940). “It may be . . . that the nature of the wound is such in itself as to justify the conclusion that the deceased was aware of his impending death.” (Emphasis added.) Commonwealth v. Puntario, 271 Pa. 501, 504, 115 A. 831, 832 (1922). The victim in this case was shot five times. One of the bullets penetrated his abdomen, perforating his liver, the right venal artery, and inferior vena cava. One hour after he was shot, he affirmatively indicated his belief that he was dying. This belief was expressed in the hospital emergency room as he was being attended by doctors and nurses. Under these circumstances, the trial court properly concluded that the declaration identifying the appellant was made when the victim believed that his death was imminent.

Appellant next contends that the evidence presented, including the dying declaration, was insufficient to establish guilt of murder in the second degree. Appellant argues that the evidence is as consistent with voluntary manslaughter or self-defense as it is with murder in the second degree. We cannot agree. We have reviewed the record and must concur in the trial court’s conclusion that “the record is devoid of any suggestion that the killing occurred during a fit of rage, terror, fear, or any emotional state which would reduce the slaying to a crime of passion. Similarly, there is no evidence that it was necessary to take the deceased’s life in order to prevent serious bodily harm to the defendant or his companions.” The record does establish the use of a deadly weapon on a vital part of the victim’s body. Malice, an essential requirement of murder in the second degree, may be inferred from that fact alone. Commonwealth v. Palmer, 448 Pa. 282, 292 A.2d 921 (1972).

Judgment of sentence affirmed.