The second-degree murder charge for Wharton undergraduate Irina Malinovskaya should be dropped, the defense argued yesterday, in light of the circumstances surrounding the 2004 bludgeoning of Temple University graduate student Irina Zlotnikov.

Defense attorney Eugene Maurer brought a motion asking Judge James Vaughn to forbid the jury from considering the charge because the murder must have been premeditated, which would only leave first-degree murder as an option.

He argued that the fact that the weapon was brought by the killer from outside the apartment, as well as the number of vicious blows involved in the murder, makes it certain that the act was premeditated.

The issue the jury needs to determine is "who the person was, not what the state of mind was," Maurer said.

Currently, Malinovskaya is charged with both first- and second-degree murder, as well as possession of a deadly weapon and attempted tampering with physical evidence.

Lead prosecutor Paul Wallace responded to Maurer's motion by arguing that there was a chance the killer could have been acting recklessly and could have brought a weapon "without the coiencious purpose to kill."

Wallace also argued that there is no legal justification to not allow the jury to consider a second-degree murder charge.

"It's a matter of law that when the state has proved the greater, it has also proved the lesser," he said.

The motion came after the prosecution presented three witnesses as part of its countercase after the defense rested Friday.

A friend of Robert Bondar, the ex-boyfriend of Malinovskaya and then-boyfriend of Zlotnikov, said Bondar was upset over Zlotnikov's death as the prosecution tried to counter the defense's depiction of Bondar as unmoved by the murder.

The other witnesses were called by the prosecution in an attempt to discredit Malinovskaya's earlier testimony that she was in Delaware to ask Bondar for advice on a school paper in the days leading up to the murder.

Wharton professor Elizabeth Bailey was called yesterday to confirm that there were no assignments due on or after Dec. 2004, the day of the murder.

Finally, a computer expert was called and confirmed that Malinovskaya had looked up driving directions to Bondar's apartment and to Widener University School of Law, where he was a student at the time.

Closing arguments are set to begin today.

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