Commonwealth v. Mahoney

POMEROY, Justice

(dissenting).

I am unable to conclude from the record, as does the Court, that the evidence adduced by the Commonwealth demonstrates, as a matter of law, that the killing of William Masser by the appellant was done in self-defense. Precedents are not of significant aid in cases such as this since each presents a different and often difficult factual situation; but in my view the present case goes farther than any others decided by this court in finding the elements of self-defense to have been satisfied. I cannot agree that they were. In the hurly-burly of the fight that occurred between Mahoney and Masser only Mahoney, the appellant, employed a gun, and that from the security of his automobile. He shot not only once, but four times, two shots finding their mark in Masser’s body, one of them, in his head, proving fatal. The jury could properly find, as it apparently did, that appellant was guilty of continuing the fracas.

For this Court to say that it “does not condone the appellant’s wounding of the decedent” (emphasis mine) but *210that appellant will, nevertheless, stand discharged as having done what he did in self-defense is not only inconsistent, but, on this record, unjustifiable. The resolution of this case was properly left to the jury. See Commonwealth v. Edwards, 448 Pa. 79, 292 A.2d 361 (1972); Commonwealth v. Commander, 436 Pa. 532, 541, 260 A. 2d 773, 778 (1970). Hence my dissent.