Commonwealth v. Pichardo

A Superior Court jury found the defendant guilty *297of second degree murder. Because of the trial judge’s erroneous instruction regarding the third method of proving malice, the jury may have found malice on a lower level of proof than required by law.1 Therefore, the conviction must be reversed and a new trial held.

The jury could have found the following facts beyond a reasonable doubt. At around midnight on July 21, 1993, the defendant, Jason Nault, Ramon Romero, Rudolpho Casado, and others were involved in a fight with Dennis Dietrich, the victim, during which Dietrich used the epithet,…