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Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946)
Supreme Court of Pennsylvania
Filed: April 8th, 1946
Precedential Status: Precedential
Citations: 47 A.2d 445, 354 Pa. 180
Docket Number: Unknown
Panel: James B. Drew, William B. Linn, George W. Maxey, Marion D. Patterson,Allen M. Stearne, Horace Stern
Author: George W. Maxey

Argued April 8, 1946. This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was killed by a shot from a
32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly terms at the time of the homicide. The defendant and his mother, while
his father and brother were in the U.S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting.
On the evening of February 26, 1945, when the defendant went to a moving picture theater, he carried in *Page 182 the pocket of his raincoat a revolver which he had obtained at the
home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father's room and he and the defendant placed it in the
revolver.
After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the
gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate
some food. The defendant suggested to the decedent that they play "Russian Poker".1 Long replied: "I don't care; go ahead". The defendant then placed the revolver against the right
side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: "Oh! Oh! Oh!" and Malone said: "Did I hit you,
Billy? Gee, Kid, I'm sorry." Long died from the wounds two days later.
The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not "expect to have the gun go off".
He declared he had no intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of murder in the second degree and
sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken.
Appellant alleges certain errors in the charge of the court and also contends that the facts did not justify a *Page 183 conviction for any form of homicide except involuntary
manslaughter. This contention we over-rule. A specific intent to take life is, under our law, an essential ingredient of murder in the first degree. At common law, the "grand criterion" which
"distinguished murder from other killing" was malice on the part of the killer and this malice was not necessarily "malevolent to the deceased particularly" but "any evil design in general;
the dictate of a wicked, depraved and malignant heart": 4 Blackstone 199. Among the examples that Blackstone cites of murder is "coolly discharging a gun among a multitude of
people", causing the death of someone of the multitude.
In Pennsylvania, the common law crime of murder is divided into two degrees, and murder of the second degree includes every element which enters into first degree murder except the
intention to kill: Commonwealth v. Divomte, 262 Pa. 504, 507; 105 A. 821. When an individual commits an act of gross recklessness for which he must reasonably anticipate that
death to another is likely to result, he exhibits that "wickedness of disposition; hardness of heart; cruelty; recklessness of consequences and a mind regardless of social duty" which
proved that there was at that time in him "that state or frame of mind termed malice".2 This court has declared that if a driver "wantonly, recklessly and in disregard of consequences"
hurls "his car against another or into a crowd" and death results from that act "he ought to face the same consequences that would be meted out to him if he had accomplished death by
wantonly and wickedly firing a gun": Com. v. Mayberry, 290 Pa. 195,199; 138 A. 686, citing cases from four jurisdictions.
In Com. v. Hillman, 189 Pa. 548; 42 A. 196, the charge of the court below was approved by this court. In that charge appears this statement: "Malice in law *Page 184 means a
depraved and wicked heart that is reckless and disregards the rights of others. Reckless conduct that results in the death of another is malice. To illustrate that: If a man fires a gun into a
crowd and kills another it is murder, because the fact of the reckless shooting of a gun into a crowd is malice in law. That wicked and depraved disposition and that recklessness and
disregard of human life is malice."
In Com. v. Knox, 262 Pa. 428; 105 A. 634, the following instructions by the trial judge in a murder case was held by this court not to be error: "When a man uses a gun loaded with
powder and shot and aimed at a vital part of the body of another and discharges it, he must be presumed to know that death is likely to follow." In Com. v. Arnold, 292 Pa. 210 at
213; 140 A. 898, this court said: "Malice will be implied from conduct, recklessness of consequences, or the cruelty of the crime".
Appellant has assigned for error certain excerpts from the charge of the court. The charge in its entirety affords no grounds for the reversal of the judgment and sentence. Certain
excerpts if they stood alone might have misled the jury to the defendant's prejudice. For example, the trial judge said: "All felonious homicide or illegal or unlawful homicide is presumed
to be malicious, that is, murder of some degree, until the contrary appears in the evidence." The second sentence after this one reads as follows: "Accordingly, when a felonious or
unlawful homicide is proved, malice is presumed to have existed . . . as a presumption of fact". A homicide may be unlawfulwithout being presumably malicious. The homicide known as
involuntary manslaughter occurs when death is caused by an unlawful act or by a lawful act done in an unlawful manner. While there do appear statements in some of the reports that
"all unlawful homicide is presumed to be malicious and, therefore, murder", careful trial judges always qualify that statement, as Chief Justice AGNEW did in Com. v. Drum, 58 Pa. 9 at
page 17 where he said: "All murder . . . includes *Page 185 all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty". Trial judges
should make it clear to the jury that an unlawful killing in order to constitute murder must result from anintentional, felonious act and not merely from an inadvertent or negligent act. The
trial judge in a sentence which intervened between the two sentences above quoted, stated the applicable principle of law correctly as follows: "This presumption of malice does not rise,
however, until the Commonwealth has made out a prima faciecase of felonious homicide". This statement was in accord with what Mr. Justice STERN, speaking for this court, said
in Com. v. Wucherer,351 Pa. 305 at 310; 41 A.2d 574, to wit: "It is important at the outset to bear in mind that the so-called presumption of malice does not arise until the
Commonwealth has made out a prima facie case of felonious homicide". Defendant's rights were fully protected by the charge in its totality.
However, the charge was in several respects prejudicial to the Commonwealth. For example, the trial judge said: "It is the duty of the Commonwealth to prove that the killing was
unlawful and intentional, and if the evidence taken as a whole raises reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, you must acquit the
accused, for the reason that the Commonwealth has failed to sustain its case." This instruction was tantamount to saying that the Commonwealth in order to obtain the conviction of the
defendant of any crime included in the indictment had to prove him guilty of murder in the first degree, for if the killingwas intentional, it would have been murder in the first degree. The
alternative presented to the jury by the instructions was limited to an intentionalkilling or to an accidental killing. The jury found that the killing was neither intentional nor accidental but
that it was a malicious killing though without a specific intent in the killer to take life, and that, therefore, it was murder in the second degree. *Page 186
The trial judge also erred in charging that "A person on trial for murder cannot be convicted of any offense if the testimony shows that the death was accidental". Death may be accidental
though it resulted from a malicious act intentionally committed. In such a case the means were not accidental; the result was.3 In the instant case if the defendant had by some negligent,
unintentional act, caused Long to fall off the stool at which he was sitting in the store and if, as a result of that fall, Long had sustained a fatal injury, both the initial act
and the death might be correctly characterized as accidental. But when the defendant knowing that a revolver had at least one loaded cartridge in it, pressed the muzzle of that revolver
to the side of Long and pulled the trigger three times, his act cannot be characterized as accidental, even if his statement that he had no intentionto kill Long is accepted (as
the jury accepted it). The way the trial judge used the word "accidental" throughout the charge must have been confusing to the jury and might easily have misled it into acquitting the
accused on the theory that since the death of Long was accidental, "the defendant cannot be convicted of any offense", (as the trial judge said). The latter should have made it clear to
the jury that even though Long's death might have been unintended and, therefore, accidental, the evidence showed that the act which caused the victim's death was not accidental. This
was the view the jury took of the case despite the court's instructions.
In another portion of the charge, the trial judge said to the jury: "If you believe the testimony of the defendant, that the shot was accidental and without intention *Page 187 on his part,
and that the shot accidentally and without intention on his part struck the body of William H. Long, from the effects of which he afterwards died, then you should acquit the defendant".
There was not in this record any evidence which would warrant a finding that "the shot was accidental". Later the judge instructed the jury that "If the killing was accidental, although done
with a deadly weapon, it could not be said to be intentional or wilful; and, if neither intentional nor wilful, the crime of murder is not made out". What we have already said on this phase of
the case sufficiently reveals the error in these instructions. Of such and similar errors, the appellant cannot complain; they were prejudicial only to the Commonwealth.
This court said in Sears v. Birbeck, 321 Pa. 375, 383;184 A. 6: "It is a primary duty of the trial judge — a duty that must never be ignored — in charging a jury to clarify the issues so
that the jury may comprehend the questions they are to decide." When the issues in either a criminal or a civil case are not clarified in the judge's charge, the charge is of very little value
in the administration of justice though it may contain no prejudicial error. A charge may be technically correct and yet be to the jury meaningless and useless. Many trial judges employ
concrete illustrations4 to help make clear to the jury what the issues are which the jury is to decide and *Page 188 how to apply legal principles to the facts so as to reach a just verdict.
The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty per
cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body. This killing was, therefore, murder, for malice in the sense
of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this
homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary.
All the assignments of error are over-ruled and the judgment is affirmed. The record is remitted to the court below so that the sentence imposed may be carried out.
1 It has been explained that "Russian poker" is a game in which the participants, in turn, place a single cartridge in one of the five chambers of a revolver cylinder, give the latter a quick
twirl, place the muzzle of the gun against the temple and pull the trigger, leaving it to chance whether or not death results to the trigger puller.
2
These quoted phrases are from the opinion of Chief Justice AGNEW in Com. v. Drum, 58 Pa. 9.
3If A maliciously beats B intending to do him enormous bodily harm without killing him and B dies as result of the beating, A can be found guilty of murder in the second degree, though
death was "accidental" in the sense that it was not intended by A.
The difference between intentional means and "accidental"results is discussed in Arnstein v. Metropolitan L. Ins. Co.,329 Pa. 158 at 162; 196 A. 491, and in footnote 1, page 237
ofO'Neill et al., v. Met. Life Ins. Co., 345 Pa. 232;26 A.2d 898.
4In the well-known case of Com. v. Harman, 4 Pa. 269, Chief Justice GIBSON in charging the jury used an illustration to make clear to the jury why evidence should not be discredited
because it was circumstantial, and that even so-called "positive" evidence was to a certain degree inferential in nature, i.e., circumstantial.
In the famous case of Com. v. Webster, 5 Cush. 295, 311, Chief Justice SHAW of Massachusetts used the following simple illustration to instruct the jury as to the nature and value of
circumstantial evidence: "When footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and
number of footprints, it can be determined with equal certainty, whether they are a man, a bird, or a quadruped."
Abstract
Adolescence, between the ages of 10 and 19 years, is a
unique period both physically and emotionally. During this time
of life, individuals are known to experiment and engage in
risky behavior, sometimes with unforeseen morbidity and
mortality. We also see suicide emerge as a manner of death in
this age group. The most common method is gunshot wound
and sometimes in the form of Russian roulette. Few studies
have looked at deaths by Russian roulette, the victims, and
scenarios. In particular, no study examines the adolescent
victim of Russian roulette. To better understand and classify
this entity, adolescent Russian roulette autopsy cases over a
20-year period were examined looking at the victims,
scenarios, autopsy findings, cause and manner of death, and
the weapons. All victims were males, ages 13 to 19 years,
with a Black-to-White ratio of 1:1. No victim had a previous
psychiatric history. Toxicology was positive for alcohol and/or
marijuana in 50% of the victims. Friends were present when
the victim shot himself which occurred in the home the
majority of the time. In all but 1 case, premeditation of the
game was involved as the victim provided the weapon for the
roulette. The cause of death was gunshot wound to the head
(6 to the right side, 1 to the mouth, 1 to the forehead), and the
manner of death was suicide in 6 cases and accident in 2
cases. A review of the literature discusses the adolescent
victim, suicide, and Russian roulette.
Criminal Law Outline

• Basic Principles and Concepts

o Hart Article – The Aims of Criminal Law; 4 characteristics of the criminal
method
▪ Method operates by a series of commands or directions formulated
in general terms, telling people what they must or must not do
▪ Commands are valid and binding upon those who fall w/in their
terms whether or not they have been formulated in advance in a
single authoritative set of words
▪ Commands are subject to one or more sanctions for disobedience
which the community is prepared to enforce
▪ Criminal sanctions are distinguished from civil sanctions is the
judgment of community condemnation
o 4 basic elements of crime: actus reus, mens rea, causation, concurrence
o Sources of criminal law: common law and Model Penal Code
o Justifications for Punishment
▪ People v. Suitte – court looks at 4 main objectives of punishment
• Deterrence (general and specific)
• Rehabilitation
• Retribution
• Isolation
o Presumption of Innocence and Proof Beyond a Reasonable Doubt
▪ Standard of proof – beyond a reasonable of doubt (level of
certainty the fact-finder must reach before ruling for the party
w/the burden of proof)
▪ In Re Winship – used proof beyond a reasonable doubt in juvenile
court; higher standard than civil cases b/c personal liberty is at
issue
o Standards of Review
▪ Standard applied to D’s motion for directed verdict at close of
prosecution’s case – whether the prosecution has introduced
sufficient evidence such that a rational jury could decide that the
prosecution has proved its case beyond a reasonable doubt
▪ Standard applied by an appellate court when reviewing the
evidence supporting a conviction – whether a rational jury could
have, on the evidence presented, found D guilty beyond a
reasonable doubt
• If evidence is ambiguous, appellate court should give
prosecution the benefit of the doubt
• Curley v. United States
o The Role of the Jury
▪ Right to a jury trial in criminal cases is guaranteed by the 6th
Amendment – usually jury of 12 and verdict must be unanimous
▪ Jury nullification – returning a verdict contrary to law
 ▪ People v. Williams – judge’s decision to dismiss a juror b/c he
acknowledged that he would not apply the law as instructed is
valid even though the juror was exercising right to jury
nullification
o Statutory Interpretation
▪ United States v. Dauray –
• Plain meaning – dictionary definition
• Canons of construction
o Noscitur a sociis – meaning of doubtful terms or
phrases may be determined by reference to their
relationship w/other associated words or phrases
o Ejusdem generis – where general words follow a
specific list, the general words should be limited to
things similar to those specifically enumerated
• Statutory structure – want to be consistent w/the rest of the
statute and amendments
• Avoid absurdity
• Rule of lenity – if the statute is ambiguous after above
analysis, must decide in favor of D
o Doctrine of last resort: reserved for when there is a
reasonable doubt about a statute’s intended scope
after resort to above methods of interpretation
• Constitutional Limitations on the Power to Punish
o 14th Amendment Due Process: Void for Vagueness Doctrine
▪ Duty of legislatures to draft statutes that are clearly understandable
• Provides fair notice to citizens of what conduct is
prohibited
• Limits police discretion to arrest and jury discretion to
imprison people they don’t like
▪ Papachristou v. City of Jacksonville – statute for vagrancy failed to
give fair notice and encouraged arbitrary and erratic arrests and
convictions – cast too large a net and increased police discretion
▪ Kolender v. Lawson – statute was precisely targeted but gave too
much discretion to law enforcement in deciding what ‘credible and
reliable identification’ would be
• Gave fair notice that statute existed, but did not give fair
notice in terms of what you would have to do in order to
abide by the statute
▪ City of Chicago v. Morales – statute gave police too much
discretion in deciding what kinds of loitering violated the statute,
no minimal guidelines for enforcing the ordinance
th
o 8 Amendment: Cruel and Unusual Punishment and the Principle of
Proportionality
▪ Coker v. Georgia – to determine whether death sentence for rape
was excessive punishment court looks to history and precedent (if
 other states imposed death penalty for rape), what juries do
w/similar cases, and legislative attitudes; held – disproportionate
• Rule: punishment is excessive if (1) it makes no
measurable contribution to the goals of punishment or (2) is
grossly out of proportion to the severity of the crime
▪ Ramirez v. Castro – 25 to life sentence under 3 Strikes rule for
three shoplifting offenses is so grossly disproportionate that it
violates the 8th Amendment
▪ Ewing v. California – punishment under the 3 Strikes rules is not
unconstitutional b/c it is not grossly disproportionate to the crime
• Solem factors: gravity of offense and harshness of penalty,
sentences imposed on other criminals in same jurisdiction,
sentences imposed on other criminals is other jurisdictions
o Equal Protection
▪ 14th Amendment – prohibits state gov’t from denying any person
w/in its jurisdiction the equal protection of the laws
• State cannot treat people differently based on their race
unless it serves a compelling state interest and it is
narrowly tailored
▪ McCleskey v. Kemp – D had to prove purposeful discrimination in
his specific case to sustain an equal protection violation – death
penalty affirmed
▪ State v. Russell – statute which distinguished b/t cocaine base and
cocaine powder was unconstitutional b/c there was no rational
basis for the distinction which had disproportionate impact on
blacks – arbitrary distinction
• Federal rational basis test: review of equal protection
challenge requires (1) a legitimate purpose for the
challenged legislation, and (2) that it was reasonable for the
lawmakers to believe that use of the challenged
classification would promote that purpose
• State rational basis test: (1) distinctions must not be
manifestly arbitrary but must be genuine and substantial,
giving a reasonable basis to justify legislature adapted to
peculiar conditions and needs, (2) classification must be
genuine or relevant to the purpose of the law, and (3) the
purpose of the statute must be one that the state can
legitimately attempt to achieve
• Creates an irrebuttable presumption of fact that if you have
a certain amount of the drug, then you are a dealer
• Actus Reus
o Five loosely related concepts
o Acting vs. Thinking: The Proscription Against Thought Crimes
▪ Wisconsin v. Mitchell – whether a penalty enhancement punishing
choosing a victim based on race punishes bigoted thoughts
 • Not punishing the thought but the bigoted conduct –
enhanced punishment b/c crime was thought to inflict
greater social and individual harm
o Acting on One’s Own vs. Acting Under State Compulsion: “Situational
Offenses”
▪ Martin v. State – cannot be punished for being drunk in public
when the police removed him from his home and put him in public
o Acting Voluntarily vs. Acting Involuntarily: The Unconsciousness
Defense
▪ State v. Decina – even though D was unconscious due to seizure
during the act, still criminally liable b/c he was reckless in
operating a car knowing that he was subject to seizures
▪ Issue of time frame: majority looks at broad time frame (D knew
he could have a seizure when he got in the car) vs. dissent which
looks at narrow time frame (D could not recklessly operate a car if
he was unconscious at the time)
o Acting vs. Failing to Act: Liability for Omissions
▪ 5 situations where an individual has a legal duty to act
• Special relationship b/t D and victim, contractual obligation
to act, statutory duty to act, if D creates the risk of harm to
the victim, if D voluntarily assumes care of a person in
need of help
▪ People v. Beardsley – no legal duty to get victim medical attention
b/c D and victim were not married even though D knew victim
ingested morphine
▪ Commonwealth v. Howard – mother had a legal duty to protect her
child from being beaten by mother’s boyfriend; mother acted
recklessly which directed resulted in child’s death
▪ Commonwealth v. Pestinikas – D entered an oral contract to care
for victim, thus their failure to provide food and medical care
which caused the death is grounds for criminal liability
▪ Generally, no duty to rescue a total stranger, but some states have
Good Samaritan laws
o Acting vs. Having a Status: “Status Crimes:
▪ Robinson v. California – statute which criminalizes being a
narcotics addict is unconstitutional b/c it is possible to be convicted
w/o performing any act w/in the state
▪ Powell v. Texas – statute criminalizing being drunk in public is
constitutional b/c it penalizes an act and not the sole fact of being
an alcoholic
• Mens Rea
o Regina v. Cunningham – issue of defining ‘maliciously’; jury should have
been instructed to decide whether D foresaw the removal of the gas meter
as possibly causing injury but removed it anyway
o Problems of Statutory Interpretation
 ▪ United States v. Yermian – issue of whether ‘willfully’ applied to
knowing the falsity of the statements AND knowing the
jurisdiction; held that b/c of plain language it only applied to
knowing the falsity of the statements
▪ Holloway v. United States – whether ‘carjacking w/intent to cause
death or serious bodily injury’ requires an unconditional intent to
kill or intent to kill or harm if necessary to complete the
carjacking; held that Congress intended to criminalize the broader
scope of conduct
o Intent
▪ Inferring Intent from Circumstantial Evidence
• State v. Fugate – intent to kill may be presumed where the
natural and probable consequences of a wrongful act is to
produce death
• Virginia v. Black – statute was unconstitutional b/c the act
of burning a cross was held to be prima facie evidence of
the intent to intimidate
▪ Doctrine of Transferred Intent
• People v. Scott – D can be held criminal liable for the
attempted murder for the intended victim who survived and
for the murder of the unintended victim who died
▪ The Specific Intent/General Intent Distinction
• People v. Atkins – voluntary intoxication is only a valid
defense when the crime requires specific intent
o General – crime consists only of an act w/o
reference to intent to do a further act or achieve a
future consequence
▪ Example – rape is sexual intercourse
committed by a male upon a female not his
wife by force and w/o her consent
▪ Limited number of general intent crimes:
rape, battery, arson, kidnapping, involuntary
manslaughter
o Specific – crime refers to Ds intent to do some
further act or achieve some extra consequence
▪ Example – larceny is tresspassory taking. .
.w/inten to permanently deprive the owner
o Knowledge
▪ United States v. Jewell – to act knowingly is to act w/positive
knowledge or w/an awareness of the high probability of the
existence of the fact in question (willful blindness)
• Willful blindness to drugs hidden in the car
o Strict Liability Crimes
▪ Morissette v. United States – if a statute is silent as to mens rea, the
ordinary presumption is that a mental state is required for criminal
 liability – silence does not necessarily mean that Congress
intended that no mental state is required
▪ No defense for strict liability crimes
• Mistake and Ignorance
o Mistakes of Fact
▪ Common law or MPC jurisdiction?
• Common law → general/specific intent
o If specific intent crime → honest/good faith belief
o If general intent crime → honest and reasonable
• MPC → doesn’t distinguish b/t general and specific intent
o Defense if it negates the mental state required for
the commission of the offense
o Legal wrong doctrine – D will be found guiltyo f
the charged offense but only punished at the penalty
set for the other, lesser crime
▪ People v. Navarro – common law jurisdiction; mistake in good
faith is a complete defense regardless of whether that believe was
also reasonable
• Theft is a specific intent crime – good faith belief defeats
the mens rea element requirement
▪ Bell v. State – MPC jurisdiction; statute could constitutionally
preclude mistake of age as a defense since the conduct would still
be illegal
o Mistakes of Law
▪ Generally ignorance is not excuse
▪ Official Interpretation of the Law (Entrapment by Estoppel)
• People v. Marrero – D can only use mistake of law defense
if he correctly read the statute and it was later found to be
invalid (policy – don’t want D to get off by saying he
misread the statute)
o D relied on his own interpretation and not an
official interpretation
o Dissent – D would have to correctly read the statute
and have it later invalidated in order to call upon the
mistake of law defense
• United States v. Clegg – D can use mistake of law defense
since he relied on official interpretation of the US military
o Dissent: D was smuggling guns before the military
asked for his assistance and there was no official
representation that D’s conduct was lawful
• State v. Fridley – mistake of law defense is not applicable
to offenses where proof of culpability is not required (i.e.
strict liability crimes)
▪ Ignorance or Mistake that Negates the Mens Rea
 • Cheek v. United States – good faith misunderstanding of
the law does not have to be objectively reasonable in order
to negate willfulness
o Standard for willfulness – voluntary, intentional
violation of a known legal duty
• Bryan v. United States – ‘willfully’ only requires proof that
D knew the conduct was unlawful, not proof that he knew
of the statute creating the illegality
▪ Fair Notice and Due Process (the Lambert exception)
• Lambert v. California – due process requires that a person
have fair notice of what conduct is considered illegal
o What will qualify something as a Lambert
exception?
▪ Whether there was actual or constructive
notice
▪ Whether D was given a chance to comply
o Act violated due process since D did not know of
her duty to register and there is no proof of the
probability of such knowledge and she was not
given a chance to comply
• State v. Bryant – sex offender registration statute was
unconstitutional b/c it contained no provision for
notification to out of state offenders that they must register
upon entered NC
o D did not have actual notice from the form filled out
in SC since it was ambiguous as to whether it
applied to other states
• Causation
o Actual “But-For” Causation
▪ But for D’s voluntary act or omission where D had a duty to act,
would the social harm have occurred when it did?
o Proximate Causation
▪ Whether it is fair and just to hold D criminally liable
▪ If D’s conduct is the direct cause → likely to hold D liable
▪ If there is an intervening cause →
• Dependent intervening cause (dependent upon or
responsive to D’s voluntary act) → D is proximate cause
unless the intervening cause is extremely unusual
• Independent intervening cause (independent of or
coincidental to D’s voluntary act) → D’s is relieved of
criminal liability unless the intervening cause is foreseeable
▪ Commonwealth v. Rementer – it is unfair to hold D liable only if
his actions are so remote and attenuated from the result – here D’s
conduct was an operative link in the chain of events that caused the
harm
 ▪ State v. Govan – D can still be held criminally liable even if a
substantial amount of time has passed between the conduct causing
the harm and the victim’s death (i.e. gunshot causing quadriplegia
resulting in fatal bout of pneumonia five years later)
▪ Hendersen v. Kibbe – failure to instruct on causation was not an
error per se b/c the jurors were informed about the causation issue
by both parties – in determining that D acted recklessly, jury
included a determination that the ultimate harm was foreseeable
since recklessness requires D to be aware of and disregard a
substantial risk
• Concurrence
o Temporal concurrence – D must possess the requisite mens rea at the same
moment of the voluntary conduct which causes the harm
o Motivational concurrence – mens rea must be the motivating force behind
the actus reus
o Thabo Meli v. Reginam – even though the act of hitting victim over the
head w/the mens rea of intending to kill him did not result in death at that
moment, D is still liable (death occurred when D rolled the body off a cliff
believing he was already dead)
o State v. Rose – not sure if death occurred when victim was initially hit by
D’s car or when D drove on, dragging the victim under the car – if the
unintentional hitting caused the death, then no mens rea at that time, but
there was intent to harm when he drove on, dragging the victim
• Homicide
o Definitional Issues
▪ Murder – unlawful killing of another w/malice aforethought
▪ Manslaughter – unlawful killing of another w/o malice
aforethought
o Categorizing Homicide
▪ Common law
• Malice aforethought is present when
o An intent to kill (inferred from circumstantial
evidence or use of deadly weapon)
o An intent to commit serious bodily injury
o An ‘abandoned and malignant heart’ or ‘depraved
heart’
o The felony murder rule applies
• Voluntary manslaughter – intentional killing that would
normally be 2nd degree murder but is reduced b/c of a
partial defense (i.e. provocation, diminished capacity)
• Involuntary manslaughter – brought about the death of
another through ‘criminal negligence’ (sometimes defined
as gross negligence or recklessness)
• Vehicular manslaughter – recognized by some states as a
separate category of homicidal crime
▪ MPC
 • Criminal homicide – purposeful, knowing, reckless, or
negligent death of another
• Murder – when committed purposefully, knowingly or
when it is committed recklessly under circumstances
manifesting extreme indifference to human life (depraved
heart equivalent)
• Manslaughter is criminal homicide when
o Committed recklessly but w/o extreme indifference
to human life
o Murder committed under extreme mental or
emotional disturbance for which there is reasonable
explanation or excuse (equivalent to doctrine of
heat of passion)
o Degrees of Murder (1 Degree v. 2nd Degree Murder)
st

▪ Default – 2nd degree murder

• Raised to 1st degree if
o Involved premeditation and deliberation
▪ No particular length of time is required for
premeditation
▪ Deliberation refers to having a cool head
o Committed using a means specified in the first
degree murder statute (i.e. lying in wait, poison)
o Occurred during the commission or attempted
commission of an enumerated felony
• Voluntary manslaughter if there are mitigating
circumstances → if enough mitigation then can be
involuntary manslaughter
▪ State v. Brown – repeated blows the head cannot, on its own, be
evidence of deliberation (to cause death); can support a 2nd degree
murder charge
• Premeditation may be formed in an instant but deliberation
requires some period of reflection
▪ State v. Bingham – manual strangulation (during a rape) which
took 3-5 minutes does not indicate a sufficient time for deliberation
• Strangulation may have been an attempt to quiet not kill
▪ Gilbert v. State – a mercy killing can be first degree murder since
there was a period of calm reflection and a cool head
o The Doctrine of Provocation (Voluntary Manslaughter)
▪ AKA ‘heat of passion’ defense
• One who kills in response to legally adequate provocation
is treated as having acted w/o malice aforethought
▪ The Early Common Law’s Approach to Provocation
• Legally adequate provocation – response to:
o An aggravated assault or battery
o Observation of a serious crime against a close
relative
 o Illegal arrest
o Mutual combat
o Catching one’s wife in the act of adultery
• Mere words rule – generally mere words are not enough to
constitute legally adequate provocation
• People v. Ambro – exception to mere words rule when
there is a series of provoking statements regarding a wife’s
infidelity, threats to take away D’s children, and goading D
to kill her
o Overruled – currently a wife’s confession of
adultery does not constitute adequate provocation
▪ The Modern “Reasonable Person” Test
• Reasonable Person test elements – both subjective and
objective elements
o D actually acted in the heat of passion
o The heat of passion was provoked by an act or event
that would have provoked a reasonable person in
D’s shoes to lose self control
o D did not have sufficient time to cool off
o A reasonable person in D’s shoes would not have
had sufficient time to cool off
• Must be a connection b/t provocation, passion, and killing
o Provocation is what actually provoked the killing
and that the person killed is either the provoker or
someone acting in concert w/the provoker
• People v. Berry – given the length of time over which the
series of provoking events occurred, D could still have been
in the heat of passion after 20 hours of waiting for victim
o Question of ‘cooling off’ is a jury question
▪ Who is “The Reasonable Person”
• Reasonable person is a person having the power of self
control to be expected of an ordinary person of D’s age
• Commonwealth v. Carr – the sight of lesbian sex is not
legally adequate provocation to mitigate murder to
manslaughter; test is whether a reasonable person
confronted w/the events would have become impassioned
to the extent that his mind was incapable of cool reflection
o The Model Penal Code’s Extreme Emotional Disturbance
▪ Murder can be mitigated to manslaughter when it is committed
under extreme mental or emotional disturbance for which there is a
reasonable explanation
• Reasonableness is determined from D’s viewpoint under
the circumstances as D believes them to be
• More subjective that modern reasonable person test
 ▪ State v. Dumlao – MPC allows jury to take D’s particular
characteristics into account and define reasonableness for his point
of view
• MPC does not require provocation to emanate from the
victim
• Having a cooling off period b/t provocation and murder
does not negate the defense – distinguish from common
law heat of passion doctrine
o Depraved Heart Murder
▪ Usually treated as 2nd degree murder
▪ Malice will be implied when D acted w/gross recklessness and an
extreme indifference to human life
• D realized his actions created a substantial and unjustified
risk of death and yet committed the act anyway
• Distinguish – homicides involving only gross negligence or
simple recklessness can only be punished as involuntary
manslaughter
▪ Commonwealth v. Malone – pulling the trigger of a gun loaded
with only one bullet three times created a substantial risk of death
and thus D exhibited a depraved heart
▪ State v. Davidson – since D could have reasonably foreseen that
her dogs would attack someone, her conduct in failing to contain
the dogs can sustain a 2nd degree murder conviction since her
recklessness displays an indifference to human life
• Recklessness – realization of imminent danger and
conscious disregard of that danger
o Involuntary Manslaughter
▪ Most jurisdictions require criminal negligence (gross negligence or
recklessness)
• Minority – only require simple negligence
• Difference b/t recklessness and negligence – whether D
was aware of a substantial and unjustified risk and chose to
disregard it (recklessness requires awareness of risk)
▪ Commonwealth v. Welansky – standard of wanton or reckless
conduct – if an ordinary person in the same situation would realize
the gravity of the situation in keeping the exit doors locked, D can
be held criminally liable
▪ State v. Williams – simple negligence is the failure to exercise
ordinary caution (that which a man of reasonable prudence would
exercise under the same or similar conditions)
• Since Ds were put on notice during the critical time of the
child’s illness when an ordinarily prudent person would
have sought medical care, they can be held liable
o The Felony Murder Rule
 ▪ Common law felony murder rule – person who kills during the
commission or attempted commission of a felony has committed
2nd degree murder
• Can be elevated to 1st degree murder if it occurs during an
enumerated felony (often rape, robbery, arson, kidnapping)
• Covers accidental deaths
▪ People v. Stamp – a felon is strictly liable for all killings
committed during the felony regardless of whether the killing is
willful, deliberate and premeditated or merely accidental
• Malice aforethought is inferred on the basis of committed a
felony inherently dangerous to human life
▪ Inherently Dangerous Felony Limitation
• People v. Patterson – inherently dangerous to life – offense
carries a high probability that death will result
o Limits the number of felonies that would qualify
under common law felony murder rule
• Hines v. State – drinking while hunting at night can turn
illegal possession of a firearm by a convicted felon into an
inherently dangerous felony
▪ The ‘Res Gestae’ Requirement
• 2 elements
o Felony and homicide must be close in time and
distance
o Must be a causal connection b/t felony and
homicide
• People v. Bodely – felony murder liability continues during
the escape of burglar from the crime scene until he reaches
a place of temporary safety
o The homicide is committed in perpetration of the
felony if the killing and the felony are parts of one
continuous transaction
• King v. Commonwealth – a death not caused by an act in
furtherance of the felony does fall w/in felony murder rule
o Only acts causing death which are committed by
those involved in the felony can be the basis for a
conviction
o The act causing death must result from some effort
to further the felony
o There must be some act attributable to the felons
which caused the death
▪ Should the Common Law Felony Murder Rule Be Abolished?
• People v. Aaron – Michigan abolished common law felony
murder rule – but there is still a 1st degree statutory felony
murder rule
• Sexual Offenses
o Introductory Material
 ▪ Statutory rape → strict liability crime
• Sexual intercourse w/a person under a certain age
• Consent and mistake of age are not defenses
▪ Forcible rape → general intent crime
• Unlawful sexual intercourse w/a woman against her will
• Consent may be a defense
• Traditionally, P had to prove that there was no consent
AND force or threat of force
• Currently → no consent + force + resistance
▪ Time frame issues – how closely in time does the force/resistance
have to occur in relation to the rape
▪ Mens rea – only intent required is the intent to have sex
o Forcible Rape
▪ Element of Force or Threat of Force
• Most jurisdictions have eliminated the resistance
requirement
• Rusk v. State – insufficient evidence to prove that D’s
actions of taking her car keys and lightly choking P created
a reasonable fear that she would be harmed if she resisted
o Must be evidence that V resisted and her resistance
was overcome by force or that she was prevented
from resisting by threats to her safety - overruled
• State v. Alston – threats of force that were unrelated to the
rape itself are insufficient to establish the requisite force
• Commonwealth v. Berkowitz – look to the totality of the
circumstances to establish sufficient force (age of parties,
mental and physical conditions, positions of authority or
dominance, presence of duress)
o Forcible compulsion includes physical, moral,
psychological, and intellectual force
o Objective standard – look to how a reasonable
person would have responded to the force
▪ What Counts as Consent?
• Most jurisdictions recognize a mistake defense – D’s
mistake as to victim’s consent must be honest and
reasonable in order to be a complete defense
• In re John Z. – withdrawal of consent nullifies any earlier
consent and subjects the male to forcible rape charges if he
persists
o Forcible rape occurs during consensual sex when:
(1) victim expresses an objection, (2) victim
attempts to stop the act, and (3) D forcibly
continues despite the objection
o Statutory Rape
▪ MPC approach
 • Similar to common law: presumes rape is a ‘he’ acting
upon a ‘she’, martial immunity
• Difference from common law: intercourse includes oral and
anal penetration, focuses on D’s conduct instead of V’s
lack of consent, does not require proof of resistance
• Rejects the idea of strict liability in rape context – allows
mistake of age defense
▪ Many states have moved towards limitations on strict liability
nature of statutory rape
• Some allow mistake of age defense when V is w/in a
certain age range
▪ Garnett v. State – statutory rape is a strict liability crime and
therefore mistake of age is not a defense – mens rea requirement
was expressly rejected by the state legislature
▪ State v. Yanez – child molestation is a strict liability crime; plain
language of statute does not include a mens rea element
• Theft Offenses
o Theft – theft crimes are specific intent crimes
▪ Larceny
• Elements of larceny
o Trespassory – involves someone else’s possession
w/o their consent
o Taking
o And carrying away
▪ Asportation – assertion of control over and
some mov’t of the item no matter how
slight
o Of property
o From possession of another
o W/intent to permanently deprive owner of it
▪ This is the specific intent element
▪ Larceny by Trick
• Elements of larceny by trick
o Employee or agent (generally drops out)
o Obtains custody of a thing
▪ When an employer delivers property to an
employee to use, keep, or make a delivery
▪ When owner loses or mislays property and
someone else finds it
▪ Owner delivers property to another as part
of a transaction to be completed in the
owner’s presence
o Through deceit
o And takes custody
o W/intent to permanently deprive owner of it
▪ Embezzlement
 •Elements of embezzlement
o Intentional
o Conversion – act that seriously interferes w/owner’s
ability to use the property
o Of the property of another
o By someone who is already in lawful possession
• Distinguished from larceny by trick (where initial taking is
through deceit, not lawful possession)
▪ False Pretenses
• Elements of false pretenses
o False statement of fact
o That causes victim to
o Pass title of property to D
o D knows the statement is false and
o Thereby intends to defraud the victim
• Distinction → gains both possession and title through
deception
• Often involves exchanging counterfeit money
o Aggravated Theft
▪ Burglary
• Elements of burglary at common law (‘at night’ element
has been removed in all states)
o Breaking and
o Entering
o Of a dwelling house
o Of another
o At night
o W/the intent to commit a felony therein
• United States v. Eichman – D cannot be prosecuted for
burglary if he did not enter w/in the four walls of the
structure
o Elements of burglary: (1) entry; (2) of a structure;
(3) w/the knowledge that the entry is not licensed;
(4) w/the intent to commit a crime w/in the structure
• State v. Thibeault – burglary requires that the entry be
w/knowledge that there is no license to enter; initial entry
must be trespassory
o Elements: entry of a structure w/knowledge that the
entry is not licensed and w/intent to commit a crime
w/in the structure
▪ Robbery
• Elements of robbery
o Theft plus
▪ Taking from person or his immediate
presence
▪ Accomplished by use of force or fear
 • Distinguished from burglary – have to prove theft instead
of just intent to commit a crime therein
• Crocker v. State – three elements of robbery
o Felonious intent
o Force or putting in fear as a means of effectuating
the intent
o By that means taking and carrying away the
property of another from his person of in his
presence
• Miller v. Superior Court – the element of ‘immediate
presence’ and use of force can be supplied after D has
gained possession of the victim’s property
o Dissent: this would transform robbery from the
crime of taking to one of taking OR retaining
property
• Defenses
o Introduction
▪ Case in chief defense – when D argues that prosecutor failed to
meet its burden of proof on at least one essential element of the
crime; just has to raise a reasonable doubt
• Mistake defenses
▪ Affirmative defense – D admits gov’t established a case in chief
but argues that D should be acquitted for another reason
• Justification defense – D claims he did the right thing or
took the most appropriate action under the circumstances
o Focuses on justness of D’s action
o If D is justified, then accomplices are not guilty
• Excuse defense – D’s act is presumed to be wrongful but D
asks to be excused for another reason
o Focuses on individual D and whether he is
blameworthy or culpable
o Has no effect on accomplice liability
• Usual evidentiary standard: preponderance of the evidence
o Justification Defenses
▪ Self Defense
• D must have an honest and reasonable belief that he is
threatened w/imminent threat of unlawful force
o Must believe that force against the perpetrator is
necessary to repel the threat and the force is
proportional to the threat
o Belief does not have to be correct
• Elements of self defense claim: (1) necessity, (2)
imminence, (3) proportionality
• Culverson v. State – D does not have to actually be in
imminent danger of death or bodily harm, but must have an
honest and reasonable belief that he is; also no duty to
 retreat if reasonable belief that D is about to be attacked
w/deadly force
o Majority rule in US: no retreat required before using
deadly force
o May be hard for a jury to determine whether a
person reasonably believed there was an available
avenue of escape
o Cannot use self defense if you are the first aggressor
unless you have communicated your withdrawal
• People v. Goetz – use an objectively reasonable person
standard in determining whether D’s belief that he was in
danger was reasonable; reasonableness is based on the
circumstances facing D in his situation
• State v. Simon – reasonableness should be judged from an
objective standard – reasonable belief implies a belief and
existence of facts that would persuade a reasonable man to
that belief
• State v. Stewart – battered wife could not claim self-
defense when she killed her sleeping husband b/c she was
not in imminent danger
o 2 pronged test for self defense
▪ Subjective standard to determine whether D
sincerely and honestly believed it was
necessary to kill in order to defend herself
▪ Objective standard to determine whether D’s
belief was necessary – whether a reasonable
person in D’s circumstances would have
perceived self defense as necessary
o Jury must weigh evidence in light of how a
reasonable person suffering from BWS would have
perceived and reacted in view of the prolonged
history of physical abuse
• State v. Wanrow – necessity of self defense is to be
evaluated in light of all facts and circumstances known to
D, including those occurring substantially before the
killing; jury should also use a subjective standard for
judging D’s reasonable belief
▪ Imperfect Self Defense
• Crime may be mitigated from murder to voluntary
manslaughter if
o Belief that force is necessary is honest but
unreasonable OR
o If attacked w/nondeadly force but respond by
escalating to deadly force
• Jury may convict D of a lesser included offense if D cannot
prove all elements of full self defense
 • MPC – when actor is reckless or negligent in the belief
about the necessity of force, any justification defense is lost
against prosecutions based on that recklessness or
negligence
▪ Defense of Others
• When a person uses force against another in order to defend
a 3rd party he thinks is in imminent danger of attack
• Elements: (1) 3rd person under imminent attack, (2)
necessity, (3) proportionality, and (4) D must honestly and
reasonably believe that force used was necessary to protect
the 3rd person
• Old common law approach
o Act at peril rule – permitted use of force for defense
of others only if 3rd person would have been
permitted to use force to defend himself
o Status rule – defense was only available if D was in
a particular status relationship w/the 3rd party
• People v. Young – right to defend another should not be
greater than such person’s right to defend himself (decided
under old common law approach w/act at peril rule)
▪ Defense of Habitation
• Use of deadly force is not permissible for simple defense of
property
• Original common law – allowed deadly force if occupant
reasonably believed the force was necessary to prevent an
imminent unlawful entry
o Modified approaches: (1) deadly force can only be
used when there is a reasonable belief that such
force is necessary to prevent imminent unlawful
entry AND intruder intends to commit a felony or
cause injury to one inside the dwelling; (2) if
reasonable belief that such force is necessary to
prevent entry and intruder intends to commit a
forcible felony or kill or cause grievous bodily
injury to the occupant or another inside
• People v. Brown – entry onto an unenclosed porch does not
equal entry into a dwelling – nature of the structure’s
composition was not such that a reasonable person would
expect some protection from unauthorized intrusions
▪ Defense of Property
• People v. Ceballos – defense of property is not a justifiable
defense for using a trap gun to defend a garage from
possible burglary
o Statute limited use of deadly force to prevention of
an ‘atrocious’ felony
 o Preservation of life is valued more than the
protection of property
• Deadly force may be justified when a person is attempting
to prevent a felony or is attempting to apprehend a fleeing
felon
• People v. Quesada – use of deadly force is not permitted to
prevent the burglary of an unoccupied home and therefore
it is not justified to apprehend such a criminal
▪ Necessity
• See chart from class
• Idea that sometimes the greater good is served by breaking
the law rather than obeying it
• Elements under common law approach: (1) harm sought to
be avoided was greater than the harm likely to be caused by
breaking the law; (2) legislature has not determined the
matter in a way that goes against D; (3) causal connection
b/t D’s illegal act and the harm sought to be avoided (must
be reasonable for D to believe that his illegal act would
abate the threatened harm); (4) no effective legal alternative
was available; (5) D was seeking to avoid a clear and
imminent danger; (6) D was not at fault for creating the
dangerous situation
• Elements under MPC approach: conduct that the actor
believes to be necessary to avoid a harm or evil to himself
or others is justified provided that (1) harm sought to be
avoided by such conduct is greater than that sought to be
prevented by the law defining the offense charged; (2)
neither MPC or other law defining the offense provides
exceptions to defenses dealing w/the specific situation
involved; (3) a legislative purpose to exclude the
justification claimed does not plainly appear
o Difference from common law: (1) MPC has no
imminence requirement; (2) possible to use defense
of necessity to murder
• United States v. Schoon – elements of necessity can never
be met in cases of indirect civil disobedience –
congressional policies are not a cognizable harm, single act
of disobedience is unlikely to abate the evil b/c the act is
indirect, and there will always be a legal alternative –
petitioning Congress
• Commonwealth v. Hutchins – necessity is not an available
defense to medical use of marijuana b/c the alleviation of
D’s symptoms does not outweigh the potential harm to the
public of D’s cultivation
o Balance harms and then look to the following
factors: (1) D faced w/clear and imminent danger;
 (2) D can reasonably expect that his action will be
effective as a direct cause of abating the danger; (3)
no legal alternative is available; (4) legislature has
not precluded the defense
• United States v. Oakland Cannabis Buyers’ Coop – medical
necessity is not an available defense to violation of the
Controlled Substances Act – statute reflects a congressional
determination that marijuana has not medical benefits
worthy of an exception
• In re Eichorn – necessity defense is available to a homeless
man who violated an ordinance by sleeping in a public
place
o Excuse Defenses
▪ Under some circumstances, even though D has broken the law and
was not morally justified in doing so, D should still not be
punished b/c he lacks moral responsibility for her actions
▪ Duress/Coercion
• D claims he was threatened by another w/physical force
unless he committed a specific crime
• Elements under common law: (1) D acted in response to an
imminent threat of death or serious bodily injury; (2) D had
a reasonable fear that the threat would be carried out unless
he committed a specific crime; (3) D had no reasonable
opportunity to escape the threatened harm
• MPC approach: excuses criminal conduct that was coerced
by the use of, or threat of use of, unlawful force against the
actor’s person or a 3rd person such that a person of
reasonable firmness in his situation would have been
unable to resist
o Difference from common law: MPC is not limited
to threats of death or serious bodily injury, no
explicit imminence requirement (although
incorporated into whether a person could resist it),
defense to homicide is possible
• Difference b/t necessity and duress
o Necessity: response to a dire situation
o Duress: response to a threat from a specific
individual to commit the act that constitutes the
crime
• United States v. Contento-Pachon – threats to D’s family
were sufficiently imminent and D has not opportunity to
escape b/c he was being watched at all times – D also
surrendered to authorities at the first chance by submitting
to X-rays (followed common law)
o Possible fourth element – D must submit to proper
authorities after attaining a position of safety
 • State v. Hunter – if the underlying felony was committed
under duress, D should not lose the defense of duress to a
felony murder charge if one of his threateners killed
another during the felony
o Defense is not available if D willfully or wantonly
placed himself in the situation in which it is
probable that he will be subject to compulsion or
threat
▪ Insanity
• See chart
• Possible tests for insanity
o M’Naghten test: (1) D suffered from a mental
disease; (2) causing defect in his reasoning powers;
(3) resulting in D lacking the ability at the time of
his actions to either know that his act was wrong
OR understand the nature and quality of his act
▪ Limitations: (1) doesn’t distinguish b/t those
who know right from wrong but cannot
control their behavior; (2) expert testimony
is limited, jury hears limited information
o Irresistible impulse test: (1) D suffered from a
mental illness; (2) causing him to be unable to
either control his actions OR conform his conduct to
the law
▪ Limitations: impulse is misleading b/c the
inability doesn’t have to come about
suddenly
o Durham test: (1) D suffered from a mental disease
or defect; (2) and his crime was a product of it (but
for the disease, D would not have committed the
crime)
▪ Limitations: problems w/causation
▪ Benefit: eliminated right/wrong dichotomy
o MPC/ALI test: (1) D suffered from a mental disease
or defect; (2) resulting in D lacking substantial
capacity to either appreciate the wrongfulness of his
conduct OR conform his conduct to the law
▪ Benefits: ‘lacking capacity’ does not have to
absolute, just substantial; ‘appreciate’ is
more than just knowing the conduct is
wrong
• United States v. Freeman – uses MPC test; remanded to
decide if toxic psychosis brought on by narcotics addiction
was sufficient to establish insanity under the new test
 o Court emphasized that repeated criminal conduct or
addition could not, on it’s own, be the sole basis for
finding a mental disorder
• State v. Crenshaw – no reversible error to instruct jury as to
knowing the difference b/t right and wrong as the ‘legal’ as
opposed to ‘moral’ right and wrong
o Legal wrongs are a reflections of society’s moral
wrongs
▪ Diminished Capacity
• Evidence of mental illness to mitigate or eliminate criminal
liability
• Mens rea variant – mental disease or defect not amounting
to insanity can show that D lacked the required mental state
o Case in chief defense b/c it is attacking an element
of the crime
• Partial responsibility variant – D is less blameworthy b/c of
mental disease or defect not amounting to insanity than
others charged w/the same crime
o Other Defenses
▪ Black Rage
▪ The Cultural Defense
• People v. Aphaylath – trial court should have allowed
expert testimony about Laotian culture and the difficulty in
assimilating to American culture
•
• Attempts
o Introduction
▪ Common law – act done w/intent to commit a crime but failing to
effect its commission
▪ MPC – requires a substantial step towards the culmination of the
commission of the targeted offense (focuses on what D has done,
rather than on what remains to be done)
▪ Elements of attempt
• Specific intent to commit the crime (even if a general intent
crime)
• An overt act in furtherance of that intent
o The Actus Reus Requirement
▪ People v. Rizzo – D did not attempt the crime of robbery b/c he
was not presented with opportunity to actually commit the crime
• Only acts which are so near to the crime’s accomplishment
that in all reasonable probability the crime would have been
committed but for timely interference
▪ People v. Staples – drilling holes through an office floor was
sufficient to establish an attempt to rob the bank vault below
• Acts went beyond mere preparation – began the breaking
element of burglary
 ▪ MPC – examples of a substantial step, pg 1194: lying in wait,
searching for or following the contemplated victim
o The Mens Rea Requirement
▪ People v. Harris – to sustain a conviction for attempted murder
there must be demonstrable intent to kill – intent to commit serious
bodily harm is not sufficient for attempt even though it would be
sufficient to convict for murder
▪ State v. Hinkhouse – sustained conviction of attempted murder
when D purposefully did not disclose his HIV status and refused to
use a condom except w/the woman he intended to marry
• Pattern of behavior demonstrated that D was not acting on
impulse or w/o the intent to harm b/c he had been warned
that such behavior would be like murder
• Attempt: D intentionally engages in conduct which
constitutes a substantial step towards commission of the
crime
o The Defense of Impossibility
▪ United States v. Thomas – rejects legal/factual impossibility
distinction and adopts MPC approach – victim did not need to be
alive in order to convict D of attempted rape
• MPC – D is guilty of attempt if he
o Purposefully engages in conduct which would
constitute the crime if circumstances were as D
believed them to be
o Does or omits to do anything w/purpose of causing
a result that is the element of the crime
o Does or omits to do anything which, under the
circumstances as he believes them to be, is a
substantial step in a course of conduct planned to
culminate in the commission of the crime
o Defense of Abandonment
▪ Generally not a defense
▪ MPC – withdrawal may be a defense IF it was fully voluntary and
the attempt was completely abandoned
• Accomplice Liability
o Accomplices must intentionally assist the principal actor in committing
the crime
o Pace v. State – mere presence is not enough to convict D as an accomplice
– also look to whether there is a duty to act
o State v. Parker – person can aid or abet by inaction (i.e. lookout) – look to
actions surrounding the crime and knowledge that the crime was occurring
• Conspiracy
o Introduction
▪ Crime is the agreement itself
▪ Collective criminality poses special dangers
 ▪ Conspiracy – agreement by two or more people to commit either
one or more criminal acts, or one or more acts that are non-
criminal but are corrupt, dishonest, fraudulent, immoral, and in that
sense illegal
▪ Common law – jury can infer agreement from circumstantial
evidence
• Some jurisdictions require an overt act in furtherance of the
conspiracy to demonstrate it’s existence
▪ MPC approach – merges conspiracy w/completed crime
• Rationale – person entering a conspiracy has demonstrated
a firm commitment to criminal activity and poses a greater
threat of actual social harm
• Conspiracy must have an actual crime as its object
▪ Wharton’s rule – look to see whether the definition of the crime
requires two or more people to actually commit it
o The Agreement
▪ State v. Pacheco – cannot convict D of conspiracy when he agreed
to commit a crime w/an undercover agent who only feigned
agreement – required genuine bilateral agreement
• Unilateral agreement is inconsistent w/rationale behind
common law – greater danger of group criminal activity
o But is consistent w/rationale behind MPC approach
– D has firm commitment to criminal activity
o The Pinkerton Rule
▪ United States v. Mothersill – each party to a continuing conspiracy
may be vicariously liable for substantial criminal offenses
committed by a co-conspirator during the course and in the
furtherance of the conspiracy, notwithstanding the party’s non-
participation in the offenses or lack of knowledge thereof
• Must prove that the crime was a reasonably foreseeable
consequence of the conspiracy
• Only applies to conspirators playing more than a minor role
• Applies when crime was also a goal of the conspiracy and
when the crime differs from the precise nature of the
conspiracy but still facilitates the implementation of the
conspiracy’s goals
o The Shape and Boundaries of Conspiracies
▪ Kotteakos v. United States – spokes in a wheel – should not have
been charged as one, large conspiracy b/c individuals were only
linked by one man’s connection to all of them
• Other parties are disadvantaged by the prosecution being
able to try all parties together in one courtroom
▪ United States v. Bruno – chain of events – jury could find there
was one conspiracy b/c each group must have known that the
conspiracy did not end with their individual transaction
o Special Defenses to Conspiracies: Withdrawal and Impossibility
▪ United States v. Read – withdrawal can become a complete
defense when coupled w/defense of statute of limitations; D has
burden of producing evidence that he withdrew and then
prosecution has burden of disproving that evidence beyond a
reasonable doubt
• Still liable for acts occurring before the withdrawal if they
are w/in the statute of limitations
▪ United States v. Recio – impossibility is not a valid defense to
conspiracy – conspiracy related dangers will exist even when the
object of the conspiracy is frustrated
 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY CRIMINAL
DIVISION

)
COMMONWEALTH OF )
PENNSYLVANIA )
Respondent, ) CP-51-CR-0014092-2011
) CP-51-CR-0014093-2011
v. ) CP-51-CR-0014094-2011
) CP-51-CR-0014095-2011
) CP-51-CR-0014096-2011
WAYNE JAMES )
Defendant )
)

Amended Post-Sentencing Motion

1. Pursuant to Pa. R. Crim. P., 720, Defendant, Wayne James, by and through appointed
counsel, Craig M. Cooley, files his Amended Post-Sentencing Motion. His motion is
presented in good faith and based on the following points and authorities.

Procedural History

2. The Commonwealth charged James with the following offenses in connection with the
June 26, 2011 shooting at the Genesis Tavern that resulted in one death (Carl Sharper’s)
and four people being shot: murder (18 Pa. C.S.A. §2502); criminal attempt-murder (18
Pa. C.S.A. §901(a)); aggravated assault (18 Pa. C.S.A. §2702(a)); carrying a firearm
without a license (18 Pa. C.S.A. §6108); and possession of an instrument of a crime (18
Pa. C.S.A. §907(a)).

3. James’ case was assigned to the Honorable Teresa M. Sarmina (Court).

4. The Defender’s Association initially represented James, but on June 17, 2013, the
Defender’s Association withdrew as trial counsel and James A. Lammendola was
appointed.

5. On September 30, 2013, jury selection began.

6. On October 1, 2013, after jury selection, James fired Lammendola and requested to
represent himself.1 Before granting his request, the Court asked James: “Has anyone

1
NT, 10/01/2013, at 15-16, 25-27, 33, 41.

Commonwealth v. Wayne James Amended PSM Page 1

 pressured… or threatened you or in any way made you give up your right to counsel.” 2
James answered no.3

7. The Court granted his self-representation request, but denied his request to postpone the
trial so he could prepare to represent himself:

If you want to represent yourself, you do have a

constitutional right to represent yourself. You can give up
the right of having an attorney assist you in your defense.
But we are not delaying the trial. You have had two years
to put this together[.]4

8. The Court also instructed James on the pitfalls of self-representation:

If you wish to represent yourself under the United States

constitution, you have the right to do so. However, you’re
going to be saddled with whatever ineffectiveness you have
of yourself because you’re not trained in law. But the law
allows you to, if you wish to give up your right to have
counsel, to represent yourself.
….
As they say in the law… only a fool has himself as a
lawyer. Okay, I’m not calling you a fool. I’m just telling
you I don’t think it’s the wisest decision. You have a right
to do it and I will not interfere with you exercising your
rights if that’s what you wish to do.5

9. During trial, the Court repeatedly advised James of the pitfalls of self-representation
when he complained about having to represent himself:

And Mr. James, you did not want backup counsel. You
didn’t want any assistance. These are some of the pitfalls
that happen when someone decides at the last moment to
represent themselves. You have a constitutional right to do
that, as I told you then.
…
But I told you, you are held to the same standards as any
attorney [199] would be. And I also told you… only a fool
has himself for a lawyer. And you chose to exercise your

2
NT, 10/01/2013, at 25.
3
Id.
4
NT, 10/01/2013, at 15; see also id. at 18 (“You’re not getting time. This is your trial. You picked the jury.”); id. at
20 (“And we’re not starting an investigation during the trial, Mr. James.”).
5
NT, 10/01/2013, at 16.

Commonwealth v. Wayne James Amended PSM Page 2

 constitutional right to represent yourself but you’re still
held to the same standard.6

10. Likewise, the Court advised James that rules of evidence and criminal procedure would
apply to him in the same way they applied to experienced trial attorneys:

And I will also advice you and tell the jury that you are
held to the same standards as any attorney would be in
court. So you have to follow the rules of court. They are
rules and you can’t say I don’t know the rules. That’s why
people usually do not represent themselves. But you’re
held to the rules. And so when I tell you to do something,
you will have to do it.7

11. At trial, the Commonwealth presented seven witnesses who saw a man get ejected from
the Genesis bar and who saw the shooting ten to fifteen minutes after the man got
ejected. Several witnesses identified James as the man who got ejected,8 while several
identified him as the shooter.9 The Commonwealth also played the video from the
Genesis bar for the jury.10 Lastly, the Commonwealth presented two forms of forensic
identification evidence: fingerprints and cartridges:

a. First, Scott Copeland, the Commonwealth’s fingerprint expert, examined a

Guinness beer bottle collected from the bar near where James was seen on the
video drinking, and identified a fingerprint that matched James’ fingerprint.11

b. Second, Lawrence Flagger, the Commonwealth’s firearms expert, said he

examined the eleven cartridges collected from the bar and concluded that the
same firearm discharged all eleven.12 The CSI team collected no evidence at the
scene to suggest another firearm was discharged during the shooting.

12. James’ defense was not mistaken identity, but rather that someone else fired a weapon
in the bar during the shooting, and it was this (unknown) individual’s firearm, that shot
the fatal bullet that killed Carl Sharper.13

13. On October 7, 2013, the jury convicted James of one count of first-degree murder and
four counts of aggravated assault.14 Immediately thereafter the Court, having no

6
NT, 10/01/2013, at 137, 198.
7
NT, 10/01/2013, at 31.
8
NT, 10/01/2013, at 88, 95, 112 (Tamatha Robinson); id. at 182 (Jerrell Johnson); NT, 10/01/2013, at 41 (Charoletta
McKee); id. at 78 (Curtis Aiken); NT, 10/03/2013, at 49 (Russell Kayan); id. at 238-239 (Kevin Brown).
9
NT, 10/01/2013, at 122-123 (Tamatha Robinson); id. at 182 (Jerrell Johnson); NT, 10/02/2013, at 56-57
(Charoletta McKee); id. at 84 (Curtis Aiken); NT, 10/03/2013, at 49 (Russell Kayan).
10
NT, 10/02/2013, at 207-235 (Detective Dunlap, who’s part of the DIVRT team, played the video for the jury).
11
NT, 10/02/2013, at 157, 171.
12
NT, 10/03/2013, at 145, 165.
13
NT, 10/07/2013, at 109, 113, 115, 117, 135-136.
14
NT, 10/07/2013, at 50-51.

Commonwealth v. Wayne James Amended PSM Page 3

 discretion to do otherwise, sentenced James to life without the possibility of parole
(LWOP) for the first-degree murder conviction and 5 to 15 years for each of the four
aggravated assault convictions.15 All sentences are to be served concurrently.

14. On October 8, 2013, undersigned counsel was appointed to represent James during the
post-sentencing and appellate stages.

15. On October 15, 2013, undersigned counsel filed James’ Post-Sentencing Motion (PSM).
Pursuant to 720(B)(3)(b), counsel requested a 30-day extension, allowing the Court to
rule on his PSM within 150 days after sentencing, rather than 120 days. Counsel
requested the extension to review the case file and trial testimony with the objective of
filing a more comprehensive Amended PSM.

16. Counsel has read and digested the 1100 plus pages of transcripts and case material and
now submits James’ Amended PSM

Pa. R. Crim. P., 720

17. Pursuant to Rule 720(A)(1), James had ten days, after imposition of his sentence, to file
his PSM. The Court sentenced James on October 7, 2013 and he filed his PSM on
October 15, 2013. His PSM is timely, so too is his Amended PSM which he filed on
January 23, 2014. Based on counsel’s 30-day extension request, the Court has until
March 6, 2014 to issue a ruling; if one is not issued by March 6, 2004, the Amended
PSM “shall be deemed denied by operation of law.” Pa. R. Crim. P. 720(B)(3)(b).

18. James makes the following post-sentencing motions: (1) motion for judgment of
acquittal; (2) motion for new sentencing hearing; and (3) motion for a new trial.

A. Motion For Judgment of Acquittal

The Commonwealth Presented Insufficient Evidence To Prove Beyond a Reasonable Doubt

That James Had The Specific Intent To Kill Carl Sharper. U.S. Const. Amends. V, VI,
VIII, XIV; Pa. Const. Art. 1, §9.

19. The Commonwealth presented insufficient evidence to prove beyond a reasonable doubt
that James had the specific intent to kill Carl Sharper when he returned to the Genesis
bar and opened fire inside the bar randomly striking individuals he did not know. The
appropriate conviction for James’s random, reckless, indifferent, and cruel act is third-
degree murder, not first-degree.

20. The Commonwealth charged James with murdering Carl Sharper (18 Pa. C.S.A.
§2502), but did not specify the degree of murder in the Information. At trial, the

15
NT, 10/07/2013, at 55-56, 60-61.

Commonwealth v. Wayne James Amended PSM Page 4

 Commonwealth argued James’ actions warranted first-degree murder. See 18 Pa. C.S.A.
§2502(a)).16

21. To convict James of first-degree murder the Commonwealth had to prove: (i) Carl
Sharper was unlawfully killed; (2) James was responsible for the killing; and (3) James
acted with malice and a specific intent to kill. See 18 Pa.C.S. §2502(a); Commonwealth
v. Houser, 18 A.3d 1128, 1133 (Pa. 2011). In other words, the Commonwealth had to
prove James “intentionally” killed Carl Sharper. Intentional killing is defined as a
“willful, deliberate and premeditated killing.” 18 Pa.C.S. §2502(b); see also
Commonwealth v. Taylor, 876 A.2d 916 (2005). Premeditation and deliberation “exist
whenever the assailant possesses the conscious purpose to bring about death.”
Commonwealth v. Drumheller, 808 A.2d 893, 910 (Pa. 2002).

22. The Court also instructed the jury on third-degree murder,17 which requires the
Commonwealth to prove malice, but not specific intent. Malice requires “a unique state
or frame of mind characterized by wickedness, hardness, cruelty, recklessness, and
disregard of social duty.” Commonwealth v. Ludwig, 874 A.2d 623, 631-632 (Pa. 2005).
Malice has been characterized as exhibiting an “extreme indifference to human life,”
Commonwealth v. Gardner, 416 A.2d 1007, 1008 (Pa. 1980).

23. The Court distinguished first- and third-degree by emphasizing “first degree murder…
requires the jury to unanimously find that there was in fact a specific intent to kill Carl
Sharper.”18

24. Midway through jury deliberations, the jury requested additional clarification between
first- and third-degree murder.19 It also asked, “Is first degree the killing of Carl
Sharper or could it be the killing of anyone?”20

25. The Commonwealth argued that “based upon the facts of the case, it would be the
killing of anyone[.]”21 Specifically, it was the Commonwealth’s belief James intended
to kill Kevin Brown, the bouncer who ejected him from the bar: “I believe that the
intended target… was certainly Mr. Brown.”22 The Court disagreed:

The question is is first degree murder the killing of Carl

Sharper or could it be the killing of anyone? I don’t know
that there’s anything in the case that would be the killing of
anyone. No one else is dead.23

16
NT, 10/01/2013, at 77, 82 (Commonwealth’s opening statements); NT, 10/04/2013, 138, 139, 141
(Commonwealth’s closing arguments).
17
NT, 10/07/2013, at 24-26.
18
Id. at 26.
19
Id. at 41.
20
Id. at 41.
21
Id. at 43.
22
Id. at 44.
23
Id. at 45.

Commonwealth v. Wayne James Amended PSM Page 5

 26. The Commonwealth argued transferred intent, but the Court rejected that line of
thinking because the Commonwealth never requested a transferred intent instruction: “It
might be but it’s not a charge that you asked me to give. It’s not a charge when I was
done with the charge that you said, oh, we missed transferred intent.”24 The Court also
emphasized the Commonwealth never argued James returned to the bar with the
specific intent of killing Kevin Brown: “You didn’t argue in your closing that he came
back gunning for Mr. Brown and that that was the intended victim. There was nothing
in any of the testimony.”25

27. The Court re-instructed the jury that, to find James guilty of first-degree murder, it had
to unanimously find that, when James returned to the bar, he had the specific intent of
killing Carl Sharper.26

28. Once re-instructed, the jury returned guilty verdicts for first-degree murder and four
counts of aggravated assaulted.27

29. Despite the jury’s verdict, there is insufficient evidence to prove beyond a reasonable
doubt that, when James returned to the bar, he did so with the specific intent to kill Carl
Sharper.28 The Commonwealth presented no evidence that James specifically targeted
anyone, let alone Carl Sharper, when he returned to the bar. The Commonwealth
conceded as much during opening statements when the prosecutor described how the
shooting played out:

Well that’s enough. He leaves the location quickly. Gets a

gun. Comes back with a nine-millimeter. Steps in the front
door and fires until that gun is empty. He hits the girl, the
first witness in this case, Ms. Robinson, who is standing at
the bar having a drink. Dancing a little bit. Shot multiple
times as he puts the gun into the bar. The victim on the
other side of the bar, the murder victim on the other side of
the bar. Shot right through the bar.29

30. The testimony of the bar patrons bolsters this point, as each said that, once James
entered the bar, he randomly shot at people.30 As does the fact James had never met
Carl Sharper and had no idea he would be in the food service area waiting to pick-up his

24
Id. at 45-46.
25
Id. at 46.
26
Id. at 46.
27
Id. at 50-51.
28
James concedes the Commonwealth proved malice, but first-degree murder requires the Commonwealth to prove
malice plus specific intent. See Commonwealth v. Houser, 18 A.3d at 1133. If specific intent cannot be proved
beyond a reasonable doubt, the appropriate conviction is third-degree murder. See NT, 10/07/2013, at 25 (“As to
third degree murder, the malice is not obviously a specific intent to kill. It is the intent to inflict serious bodily
injury.”).
29
NT, 10/01/2013, at 80.
30
NT, 10/1/2013, at 91 (Tamatha Robinson), 166-168 (Jerrell Johnson); NT, 10/02/2013, at 42 (Charoletta McKee),
89 (Curtis Aiken); NT, 10/03/2013, at 48 (Russell Kayan), 115 (Albert Saboleh), 239 (Kevin Brown).

Commonwealth v. Wayne James Amended PSM Page 6

 takeout order. If James did not know Sharper, and he had no clue Sharper would be at
the bar, how could he have possibly formed the requisite premeditation and specific
intent to kill him?

31. Additionally, James never said a word during or after the shooting indicating he
intended to kill Sharper or anyone else for that matter.31 Furthermore, if James had the
specific intent to kill Kevin Brown, his actions did not show it; rather than methodically
seeking out Brown once inside the bar, James immediately opened fire, randomly
shooting in all directions. While the bullets he fired struck several bar patrons and
killed Carl Sharper, his actions do not prove beyond a reasonable doubt he had the
specific intent to kill anyone, including Carl Sharper.

32. James concedes the “law does not require a lengthy period of premeditation” and that
the “design to kill can be formulated in a fraction of a second.” Commonwealth v.
Jordan, 65 A.3d 318, 323 (Pa. 2013). This may be so, but when James haphazardly
fired his gun inside the bar, particularly the shot that killed Carl Sharper, he did not
premeditate Sharper’s death and he did not have the specific intent to bring about his
death. Walking into a crowded bar, especially one James had never been to before,32
and opening fire immediately upon entering without taking inventory of who was at the
bar, demonstrates extreme indifference to human life, but it does not prove beyond a
reasonable doubt that James specifically intended to bring about a particular person’s
death.

33. The Commonwealth, however, believed James acted with specific intent because he
used a deadly weapon on a vital part of Carl Sharper’s body:

[W]hen you take a deadly weapon and use it on a vital part

of the body, you can infer… that the person with that
deadly weapon possessed the specific intent to kill… If you
possessed a deadly weapon and use it on a vital part of
someone’s body, the head, and you fire a bullet directly
into someone’s head, then you can infer… that the shoot
had the specific intent to kill.33

34. The “specific intent to kill and malice are properly implied when a deadly weapon is
directed to a vital part of the body.” Commonwealth v. Austin, 575 A.2d 141, 144 (Pa.
Super. 1990) (emphasis in original); accord Commonwealth v. Roberts, 437 A.2d 948,
951-952 (Pa. 1981); Commonwealth v. Carter, 393 A.2d 13, 15 (Pa. 1978);
Commonwealth v. Palmer, 292 A.2d 921, 923 (Pa. 1972); Commonwealth v. O’Searo,
352 A.2d 30, 35-36 (Pa. 1976); Commonwealth v. Bricker, 326 A.2d 279, 281 (Pa.
1974). Likewise, “the specific intent necessary for a first degree murder conviction
may be inferred from the use of a deadly weapon upon a vital part of the victim’s

31
NT, Suppression Hrg, 06/06/2013, at 68-69, 86-88.
32
NT, 10/03/2013, at 113.
33
NT, 10/01/2013, at 75-76. The prosecutor made the same argument during closing arguments. See NT,
10/04/2013, at 139-140.

Commonwealth v. Wayne James Amended PSM Page 7

 body.” Commonwealth v. McAndrews, 430 A.2d 1165, 1166 (Pa. 1981) (emphasis
added); accord Commonwealth v. Holzer, 389 A.2d 101, 104 (Pa. 1978);
Commonwealth v. Agie, 296 A.2d 741 (Pa. 1972).

35. James does not dispute the principle behind these holdings; what he disputes, is whether
the facts in his case fall within the parameters of this principle. He believes they do not,
and recent cases support his position. See Commonwealth v. Padilla, 2013 WL 5848693
at *2, 5 (Pa., Oct. 31, 2013); Commonwealth v. Bryant, 67 A.3d 716, 722-723 (Pa.
2013); Commonwealth v. Jordan, 65 A.3d 318, 321, 324 (Pa. 2013); Commonwealth v.
Thomas, 54 A.3d 332, 335, 336, 338 (Pa. 2012); Commonwealth v. Houser, 18 A.3d
1128, 1131-1132 (Pa. 2011); Commonwealth v. Briggs, 12 A.3d 291, 301, 307 (Pa.
2011); Commonwealth v. Smith, 985 A.2d 886, 896 (Pa. 2009); Commonwealth v. Rega,
933 A.2d 997, 1009-1010 (Pa. 2007); Commonwealth v. DeJeus, 880 A.2d 608, 611-
613 (Pa. 2005); Commonwealth v. Cruz, 919 A.2d 279, 280, 281 (Pa. Super. 2007);
Commonwealth v. Randall, 758 A.2d 669, 675 (Pa. Super. 2000).

a. For instance, a specific intent to kill can be inferred when a defendant repeatedly
shot the victim(s) at close range in a vital organ. See, e.g., Commonwealth v.
Padilla, 2013 WL 5848693 at *2, 5 (defendant shot three victims, killing all three;
one victim was shot thrice another was shot four times); Commonwealth v.
Bryant, 67 A.3d at 722-723 (victim shot “multiple” times at close range in back
seat of car); Commonwealth v. Thomas, 54 A.3d at 335, 336, 338 (victim shot
four times); Commonwealth v. Houser, 18 A.3d at 1131-1132 (victim police
officer shot twice at close range); Commonwealth v. Briggs, 12 A.3d 291, at 307
(two police officers shot twice at close range); Commonwealth v. Smith, 985 A.2d
at 896 (victim shot seven times); Commonwealth v. Rega, 933 A.2d at 1009-1010
(victim shot three times in head); Commonwealth v. Randall, 758 A.2d at 675
(victim shot three times).

b. Similarly, a specific intent to kill can be inferred when the defendant uses a
firearm against law enforcement officers at close range to evade arrest. See, e.g.,
Commonwealth v. Jordan, 65 A.3d at 321, 324 (defendant shot police officer in
forehead at close range to evade arrest after the officer confronted him during a
robbery); Commonwealth v. Houser, 18 A.3d at 1131-1132 (defendant shot police
officer in head and abdomen at close range as officer tried to take him into
custody for failing to appear for his rape trial); Commonwealth v. Briggs, 12 A.3d
at 301, 307 (defendant shot two police officers twice, in the head and abdomen, as
they tried serving an arrest warrant on him). Likewise, a specific intent to kill can
be inferred when the defendant shoots the victim multiple times at close range to
evade detection. See Commonwealth v. Rega, 933 A.2d at 1009-1010 (defendant
shot victim three times in the head after he and his co-defendants botched an
attempted robbery).

c. A specific intent to kill can also be inferred in the murder-for-hire context, i.e.,
where the defendant is compensated to shoot and kill a particular person or
persons. See, e.g., Commonwealth v. Bryant, 67 A.3d at 722-723 (defendant shot

Commonwealth v. Wayne James Amended PSM Page 8

 two victims, one being Chanta Wright, multiple times at close range in the back
seat of a car at the behest of defendant’s friend, Hakeem Bey, to prevent Wright
from testifying at Bey’s murder trial); Commonwealth v. Thomas, 54 A.3d at 335,
336, 338 (defendant shot the victim at the behest of defendant’s friend, Kareem
Glass, because the victim identified Glass as the individual responsible for the
shooting death of victim’s cousin, Tyreek Gaymon, in 2004).

d. Lastly, a specific intent to kill can be inferred when there is evidence the
defendant/shooter sought out the victim. See, .e.g., Commonwealth v. DeJeus, 880
A.2d at 611-613 (defendant had an ongoing dispute with Capone, and when
defendant believed he spotted Capone, he grabbed his AK-47, raced to the top of
his apartment building, and repeatedly fired at the individual he believed to be
Capone; the victim, unfortunately, was not Capone); Commonwealth v. Cruz, 919
A.2d at 280, 281 (defendant and victim agreed to a fist fight at a local 7-11, but
during the fight defendant grabbed a gun, chased the victim down, and shot him at
close range in the back).

36. Here, James: (1) did not shoot Carl Sharper multiple times at close range; (2) did not
shoot Sharper to evade arrest; (3) did not seek out Sharper before shooting him; and (4)
was not compensated for shooting Sharper. Thus, despite the fact James shot Sharper in
the forehead, the circumstances leading to the shooting fail to demonstrate that James
premeditated Sharper’s death or that he had the specific intent to kill Shaper.34

37. James may have had the specific intent to seriously harm bar patrons, but intending to
inflict serious injuries is much different than acting with premeditation and a specific
intent to kill. Here, the weight of the evidence, as it relates to Carl Sharper’s death,
supports third-degree murder, not first-degree, because the facts support a finding of
malice, but not specific intent. Here, James acted with “gross recklessness,”
Commonwealth v. Malone, 47 A.2d 445, 447 (Pa. 1946), because firing into a crowded
bar plainly demonstrates “extreme indifference to the value of human life.”
Commonwealth v. Taylor, 337 A.2d 545, 548 (Pa. 1975).

34
The transferred intent doctrine is inapplicable here because the Commonwealth failed to prove James returned to
the bar with the specific intent of killing anyone, let alone Carl Sharper. Indeed, the Court explained the transferred
intent doctrine to James early on during the trial:
It’s when a particular individual is killed… That you killed him. And
that you did so with the specific intent to kill. There is nothing in the
law that requires that I specifically intend to kill the person who is
killed. So right now I closed my eye and pulled out a gun and started
shooting and I hit you directly in the forehead… and you dropped down
dead… So if you intended to kill the bouncer… and you ended up
killing Mr. Sharper, that intent followed the bullet. So it doesn’t matter
who you killed if it was you.
NT, 10/01/2013, at 204-205.

Commonwealth v. Wayne James Amended PSM Page 9

 B. Motion For New Sentencing Hearing

James LWOP Sentence Violates State and Federal Law Because, Pursuant To 18 Pa.C.S.
§1102, The Court Has No Discretion To Consider Mitigating Evidence Calling For a
Sentence Less Than LWOP, Despite the Fact an LWOP Sentence is Equivalent to a Death
Sentence. U.S. Const. Amends. V, VI, VIII, & XIV; Pa. Const., Art. 1, §§8, 9, 13.

38. Pursuant to 18 Pa.C.S. §1102, a person convicted of first-degree murder “shall” be

sentenced to LWOP. The Court, as a result, had no discretion to sentence James to
anything but LWOP.35 An LWOP sentence, however, is equivalent to a death sentence
because James will die in prison:

As for the punishment, life without parole is ‘the second

most severe penalty permitted by law.’ It is true that a
death sentence is ‘unique in its severity and irrevocability,’;
yet life without parole sentences share some characteristics
with death sentences that are shared by no other sentences.
The State does not execute the offender sentenced to life
without parole, but the sentence alters the offender’s life by
a forfeiture that is irrevocable. It deprives the convict of
the most basic liberties without giving hope of restoration,
except perhaps by executive clemency— the remote
possibility of which does not mitigate the harshness of the
sentence. As one court observed… this sentence ‘means
denial of hope; it means that good behavior and character
improvement are immaterial; it means that whatever the
future might hold in store for the mind and spirit of [the
convict], he will remain in prison for the rest of his days.

Graham v. Florida, 130 S.Ct. 2011, 2027 (2010); accord Miller v. Alabama, 132 S.Ct.
2455, 2463 (2012) (“Graham further likened life without parole… to the death penalty
itself[.]”).

39. In other words, first-degree murder in Pennsylvania brings about an automatic death
sentence, regardless of the circumstances of the offense and the defendant’s social
history. The U.S. Supreme Court outlawed automatic death sentences in Woodson v.
North Carolina, 428 U.S. 280, 303 (1976), and reaffirmed Woodson’s holding in
Sumner v. Shuman, 483 U.S. 66, 74–76 (1987). Subsequent decisions have elaborated
on the requirement that defendants who face a potential sentence where their life will
surely end in prison, must be afforded the opportunity to advance, and the judge or jury
a chance to assess, any mitigating factors, so that the “most severe punishment,” Miller
v. Alabama, 132 S.Ct. 2466, is reserved only for the most culpable defendants
committing the most serious offenses. See, e.g., Abdul-Kabir v. Quarterman, 127 S.Ct.

35
NT, 10/07/2013, at 55-56 (“There is no real benefit to be gained by ordering a presentence report since it is a
mandatory sentence of life imprisonment which I am required to impose.”).

Commonwealth v. Wayne James Amended PSM Page 10

 1654, 1664-1670 (2007); Eddings v. Oklahoma, 455 U.S. 104, 110–112 (1982); Lockett
v. Ohio, 438 U.S., 586, 597–609 (1978).

40. That James could not present, and the Court (or jury) could not consider, mitigating
circumstances regarding the offense or James’ social history, renders 18 Pa.C.S. §1102
as well as James’ LWOP sentence unconstitutional. See U.S. Const. Amends. V, VI,
VIII, & XIV; Pa. Const., Art. 1, §§8, 9, 13.

41. If James’ first-degree murder conviction stands,36 he is entitled to a new sentencing

hearing where he can present mitigating evidence calling for a sentence less than
LWOP (i.e., death).

C. Motion For A New Trial

The Court Erred When It Concluded The Police Had Probable Cause To
Arrest James On July 28, 2011. U.S. Const. Amends. IV, XIV; Pa. Const.,
Art. 1, §§ 8, 9.

42. Following the shooting, the police interviewed twelve people who witnessed the
shooting, none of whom identified or named James as the shooter.37

43. On July 27, 2011, the day after the shooting, police released the bar surveillance video,
which captured the shooting, to the local media.38

44. On the night of July 27, 2011, between 8 and 8:30 p.m., Leonard Waysone approached
two police officers on a North Philadelphia street corner and said he saw the video on
the news and thought the shooter looked like his cousin–Wayne James.39 Likewise,
shortly before Waysone approached police, an anonymous caller contacted the police
and said the shooter’s name was Wayne James and that James lived at 1114 Wagner
Street.40

45. After receiving these tips, police did not re-interview the bar patrons who witnessed the
shooting and have them view a photo array with James’ photograph to determine if any
could possibly identify him as the shooter.41

46. Based on Waysome’s and the anonymous caller’s tips, Detective Williams Holmes–the
lead investigator–prepared a search warrant for 1114 Wagner,42 but not an arrest
warrant for James.43 Likewise, based on this information, Detective Holmes tasked

36
Which it should not because James’ conduct warrants third-degree murder, not first-degree.
37
NT, Suppression Hrg, 06/06/2013, at 73.
38
Id. at 74.
39
Id. at 13, 15.
40
Id. at 24.
41
Id. at 73.
42
Id. at 63, 83.
43
Id. at 40, 83.

Commonwealth v. Wayne James Amended PSM Page 11

 Detective Derrick Jacobs with surveying 1114 Wagner Street during the early morning
hours of June 28, 2011.44

47. After surveying 1114 Wagner Street for a short period, Detective Jacobs spotted James
when he parked and exited a silver Suzuki near 1114 Wagner and then entered 1114
Wagner Street.45 Detective Jacobs relayed this information to Detective Holmes who
was still in the process of completing the search warrant application, but not an arrest
warrant.46

48. A few hours later, at 8:00 a.m., Detective Holmes executed the search warrant with the
Homicide Fugitive Task Force and U.S. Marshalls.47 As they executed the search
warrant, they arrested James,48 placed him in a police cruiser, and transported him to the
Homicide Division for questioning.49

49. Later in the day, the District Attorney’s Office approved the charges against James.50

50. When James moved to throw out his arrest, because the police lacked probable cause,
the Court held a suppression hearing on June 6, 2013. At the hearing’s conclusion, the
Court said the police had probable cause to arrest James.51 The Court erred.

51. The probable cause standard is met when, at the moment of arrest, the facts and
circumstances within the arresting officer’s knowledge, and of which he or she has
reasonably trustworthy information, were sufficient to warrant a prudent person in
believing that the person arrested had committed an offense. See Florida v. Harris, 133
S. Ct. 1050, 1055 (2013) (listing cases defining “probable cause”); Commonwealth v.
Rogers, 849 A.2d 1185, 1192 (Pa. 2004). In evaluating whether the Commonwealth has
met this standard, courts examine the “totality of the circumstances.” See, e.g.,
Maryland v. Pringle, 540 US 366, 371 (2003); Illinois v. Gates, 462 U.S. 213, 232
(1983); Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985).52 Moreover, because the
Commonwealth did not obtain an arrest warrant, probable cause must have existed prior
to James’ arrest. See Commonwealth v. Evans, 685 A.2d 535, 537 (Pa. 1998). In other
words, hindsight cannot supply probable cause that was lacking at the time of his arrest.

44
Id. at 34-35, 57.
45
Id. at 37.
46
Id. at 35.
47
Id. at 41.
48
The Commonwealth conceded James was not free to go when authorities executed the search warrant. See id. at
50.
49
Id. at 64.
50
Id. at 70.
51
NT, Suppression Hrg., 06/06/2013, at 102.
52
“The protection against unreasonable searches and seizures afforded by the Pennsylvania Constitution is broader
than that under the federal Constitution.” Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997); Commonwealth
v. Edmunds, 586 A.2d 887 (Pa. 1991).

Commonwealth v. Wayne James Amended PSM Page 12

 52. Here, based on the information the police had before arresting James, no person of
reasonable caution would belief James was the shooter simply because Waysone and
one anonymous caller alleged that James looked like the shooter.

53. When the source of the information is an anonymous call, that presents with no or few
indicia of reliability, courts have recognized that such tips should be treated with
“particular suspicion.” Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997);
Adams v. Williams, 407 U.S. 143, 146–147 (1972); Cf. Commonwealth v. Anderson,
392 A.2d 1298, 1300 (Pa. 1978); Commonwealth v. Kue, 692 A.2d 1076, 1078 (Pa.
1997); Commonwealth v. Hawkins, 692 A.2d 1068, 1070 (Pa. 1997). Indeed, the
anonymous calls in Anderson, Kue, and Hawkins, standing alone, did not provide
adequate justification for a Terry-stop based on the (lower) reasonable suspicion
threshold.

54. The U.S. Supreme Court in Alabama v. White, for instance, “recognized that an
anonymous tip alone seldom demonstrates the informant’s basis of knowledge or
veracity inasmuch as ordinary citizens generally do not provide extensive recitations of
the basis of their everyday observations and given that the veracity of persons
supplying anonymous tips is ‘by hypothesis largely unknown, and unknowable.’” 496
U.S. 325, 329 (1990) (quoting Illinois v. Gates, 462 U.S. at 237); accord Florida v.
J.L., 529 U.S. 266, 270 (2000) (“Unlike a tip from a known informant whose reputation
can be assessed and who can be held responsible if her allegations turn out to be
fabricated, an anonymous tip alone seldom demonstrates the informant’s basis of
knowledge or veracity”) (quotations and citations omitted); Adams v. Williams, 407
U.S. at 147 (“Some tips, completely lacking in indicia of reliability, would either
warrant no police response or require further investigation before a forcible stop of a
suspect would be authorized”).

55. Although reasonable suspicion cases, Anderson, Kue, and Hawkins are applicable here.
In each case, the police had no “independent reason,” outside the anonymous calls, to
believe the arrestee may have been involved in criminal activity. See Commonwealth v.
Kue, 692 A.2d at 1078; Commonwealth v. Hawkins, 692 A.2d at 1070. In other words,
before acting on an anonymous tip containing no indicia of reliability, the police must
conduct their own investigation to develop evidence corroborating the caller’s
statement(s)/allegation(s). See Commonwealth v. Carlisle, 501 A.2d 664, 666 (Pa.
Super. 1985), aff’d 534 A.2d 469 (Pa. 1987) (“[A] ‘tip’ from an unnamed informant can
properly form the basis for probable cause, provided there is adequate evidence of the
informant’s credibility.”); Commonwealth v. Miller, 483 A.2d 498, 501 (Pa. Super.
1984). In the probable cause context, more importantly, the independent evidence must
give a reasonably cautious investigator the belief that the person he or she intends to
arrest committed a criminal offense. See Florida v. Harris, 133 S. Ct. at 1055.

56. Here, the caller provided no verifiable information as to how and why he knew or
suspected James to be the shooter. See Florida v. J.L., 529 U.S. at 271 (finding that
anonymous tip did not establish reasonable suspicion because the caller “provided no
predictive information and therefore left the police without means to test the informant's

Commonwealth v. Wayne James Amended PSM Page 13

 knowledge or credibility.”).53 For instance, there is no evidence the caller ever saw the
video on any of the local news outlets. Likewise, he (or she) did not mention they were
at the bar and witnessed the shooting. Lastly, for all we know, Waysone could have
been the anonymous caller; it is plausible Waysone called in the anonymous tip at 8:00
p.m. on June 28, 2011, and shortly thereafter approached Officer Switaj and his partner
to voice his suspicion in person. If this is true, and it very well may be, the supposed
collective and corroborative impact of Waynsone’s statement and the anonymous call is
a mirage.

57. Regardless of whether Waysone is the anonymous caller or not, the lack of verifiable
information regarding the caller and the basis for his or her belief that James was the
shooter, renders the caller and the information he or she provided unreliable, unless, of
course, the police conducted their own investigation and developed independent
evidence implicating James in the Genesis bar. See, e.g., Florida v. J.L., 529 U.S. at
271; Alabama v. White, 496 U.S. at 330 (“Thus, if a tip has a relatively low degree of
reliability, more information will be required to establish the requisite quantum of
suspicion than would be required if the tip were more reliable.”).

58. That Waysone and the anonymous caller provided the correct address and description of
the Black Volvo proves nothing; it merely shows Waysone and the caller are familiar
with James’ address and vehicle, but these facts are irrelevant as to whether James
actually committed the shooting. In other words, while these facts may have been
accurate, they failed to create a nexus between James and the shooting.

59. Likewise, that Waysone said he was James’ cousin does not change the analysis.

a. First, there is no evidence the police attempted to verify the familial relationship
between James and Waysone. For all we know, Waysone could have been
enemies and Waysone wanted to falsely implicate James in the shooting. The
police took Waysone’s word hook, line, and sinker without conducting any sort of
investigation as to his alleged familial connection to James.

b. Second, Waysone’s statement–that the shooter looked like James–was nothing

other than mere speculation and conjecture, see Commonwealth v. Torres, 764
A.2d 532, 540 (Pa. 2001), that required additional investigation to transform it
into a reliable piece of information that could form the foundation of a probable
cause.

60. The police, however, conducted no investigation whatsoever, and as a result, did not
develop independent evidence implicating James in the shooting. The police, for
instance, could have easily presented photo arrays to the twelve bar patrons and
employees who witnessed the shooting to see if any could identify James as the shooter.
Likewise, they could have wired Waysone and had him strike up a conversation with
James to see if he (James) would implicate himself in the shooting. The police did
neither.
53
Id. at 30-32.

Commonwealth v. Wayne James Amended PSM Page 14

 61. Instead, within hours of learning of James’ name and address, the police went to 1114
Wagner Street with a search warrant and arrested him. Notably, when James exited the
silver Suzuki and walked into the 1114 Wagner Street residence, he was not engaged in
any sort of criminal activity. See Commonwealth v. Anderson, 392 A.2d at 1301
(“Moreover, there was nothing observable in his conduct in the officers’ presence to
suggest that he was in anyway involved in criminal activity or that he was the person
they were seeking. In fact the only basis for the officers’ belief that a crime had
occurred rested upon unverified information supplied by the unidentified informer.”).
Observing someone exit a vehicle and enter a residence, that is presumably his, can
hardly be considered the type of investigation needed to develop independent evidence
implicating that person in a crime, particularly a homicide. Thus, once James entered
his residence, the quantity and quality of information the police had on him remained
the same: all they knew was Waysone and an anonymous caller thought James looked
like the shooter. See United States v. Cortez, 449 U.S. 411, 417, (1981) (holding that
both factors—quantity and quality—are considered in the totality of the circumstances
analysis). These facts, standing alone, were insufficient to establish probable cause,
especially when acknowledges the unreliability of eyewitness identification.

62. In short, the police lacked probable cause to arrest James.

Prayer For Relief

63. WHEREFORE, James respectfully prays for the following relief:

a. His first-degree murder conviction be vacated due to insufficient evidence

proving beyond a reasonable doubt that he acted with specific intent when he
fired the bullet that killed Carl Sharper.

b. If his first-degree murder conviction is not vacated, he requests a new sentencing

hearing so he may develop and introduce mitigation evidence calling for a
sentence less than LWOP (i.e., death).

c. That his conviction be quashed because the police lacked probable cause when
they arrested him on June 28, 2011.

d. Any other relief the Court deems fit in the interest of justice.54

54
The Court should note counsel withdrew three claims raised in James’ initial PSM: (1) there was insufficient
evidence warranting James’ aggravated assault convictions; (2) James did not knowingly and voluntarily waive his
right to counsel; and (3) the Court’s LWOP and aggravated assault sentences were excessive. After reviewing the
record and transcripts, counsel concluded these issues were meritless prompting him to drop them from the Amended
PSM.

Commonwealth v. Wayne James Amended PSM Page 15

 Respectfully submitted this the 23rd day of January, 2014

Cooley Law Office

1528 Walnut Street, Ste. 1902
Philadelphia, PA 19102
Pa. Bar. No. 315673
773-620-7610
[email protected]
www.pa-criminal-appeals.com

Date Mailed: January 21, 2014

Certificate of Service

On January 21, 2014, undersigned counsel served (via U.S. mail) a copy of the
aforementioned motion to:

Philadelphia County District Attorney’s Office

Attn: ADA Brendan O’Malley
3 South Penn Square
Philadelphia, PA 19107

/s/Craig M. Cooley
Craig M. Cooley
Cooley Law Office
1528 Walnut Street, Ste. 1902
Philadelphia, PA 19102
Pa. Bar. No. 315673
773-620-7610
[email protected]

Commonwealth v. Wayne James Amended PSM Page 16