might be enough to warrant striking the testimony of the Sheriff, and granting relief, were it not for the fact that the record discloses independent evidence sufficient to raise the degree of the crime to murder in the first degree.
Jane Clark testified that she and the petitioner had decided to go to West Virginia to get married (Tr. pg. 48); that she was told that the petitioner and his co-defendant would secure an automobile for the trip (Tr. pg. 49); that they stated that they would kill if necessary to obtain a car (Tr. pg. 49); that they told her that they had killed a man to secure the car (Tr. pg. 53); and that the petitioner had a gun (Tr. pg. 53). The petitioner's co-defendant testified that the petitioner had related to him that he (the petitioner) would kill someone, if necessary, to secure a car (Tr. pg. 159).
The petitioner testified that he had taken his brother's gun for the purpose of shooting rats (Tr. pgs. 127-128); that even after Blair had picked them up, the petitioner did not intend to take the car because it was old (Tr. pg. 131); that when the decedent refused to take the petitioner and his co-defendant to Black Lick they alighted from his car, and that without any particular motive or reason, the petitioner shot and killed Blair (Tr. pgs. 131, 132, 138, 144 and 145). Thus, the evidence, independent of the testimony of the Sheriff, reveals a cold blooded, senseless, motiveless killing of a human being.
Murder is the killing of a human being with malice aforethought, and it is the presence of this element which distinguishes murder from manslaughter. Commonwealth v. Gibson, 275 Pa. 338, 119 A. 403 (1923). Malice "* * consists either of an express intent to kill or inflict great bodily harm, or of a 'wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty,' indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life." Commonwealth v. Lawrence, 428 Pa. 188, 193-194, 236 A. 2d 768, 771 (1968). It is an essential element of the crime of murder, and may be inferred from the totality of surrounding circumstances. Commonwealth v. Chermansky, 430 Pa. 170, 242 A. 2d 237 (1968); Commonwealth v. Lawrence, supra.
It is the fully formed purpose and not the time lapse which demonstrates the premeditation necessary to sustain a first degree murder conviction. Commonwealth v. Carroll, 412 Pa. 525, 194 A. 2d 911 (1963); Commonwealth v. Earnest, 342 Pa. 544, 21 A. 2d 38 (1941); Commonwealth v. Drum, 58 Pa. 9 (1868). "The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom, and may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being." Commonwealth v. Carroll, supra, 412 Pa. at pg. 532, 194 A. 2d at pg. 915. An individual is said to intend the consequences of his acts. Commonwealth v. Scott, 284 Pa. 159, 130 A. 317 (1925). Thus, because of the presence of malice, the crime involved was murder. From the presence of the elements of willfulness, deliberateness and premeditation, the degree of the offense was first degree murder. Consequently, the determination of the trial court was reasonable. For these reasons, it is not necessary to consider whether or not the elements of felonymurder were proven, or indeed if they could have been proven in view of the prior conviction for larceny of the Blair automobile. The Supreme Court of Pennsylvania concluded that first degree murder through the willful, deliberate and premeditated killing of a human being had been shown through evidence independent of the Sheriff's testimony, and that the conviction was proper. Under the circumstances presented by the record, no constitutional question is presented for a federal court's determination. Accordingly, a writ of habeas corpus will be denied. A certificate of probable cause will also be denied.
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