Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1965, No. 247, in case of Commonwealth of Pennsylvania v. Donald White.
Mary Bell Hammerman, for appellant.
Louis Perez, Jr., Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case.
This is an appeal from a judgment of sentence of life imprisonment imposed on appellant after his conviction by a jury on a charge of first-degree murder and after denial of his post-trial motions.
At appellant's trial, the Commonwealth produced the following evidence:
On Saturday evening, August 14, 1965, at approximately 10 p.m., appellant entered a small crowded bar in Philadelphia. Lucille Johnson testified that she was sitting within one or two feet of the deceased when she saw appellant walk right up in front of the deceased and extend his right hand as if offering to shake hands with Holloway. When she had turned her head to talk
to another person to her right, Miss Johnson heard three loud noises like the explosion of firecrackers. She turned back to her left and saw the appellant running toward the back of the bar. Eugene Holloway was face down on the floor.
Two other witnesses, LeRoy Stratten and his twenty-three-year old grandson Ernest, were on Holloway's left in the bar that evening. They both saw appellant running to the back of the bar immediately after they heard the shots fired. Ernest Stratten noticed a shiny object, three or four inches long, in the appellant's hand.
William Holloway, uncle of the deceased, was standing at the bar. After the second shot, he turned around and saw the appellant with his right arm bent at the elbow and extended in a horizontal position, standing in front of the deceased. No witness saw anyone but the appellant in front of the deceased at the time the shots were fired. Dr. Edward J. Burke, Police Laboratory Director, testified that tests taken on a shirt removed from the deceased's body after he was shot established, in his expert opinion, that the muzzle of the murder weapon was from one and one-half to two and one-half feet from the deceased when he was shot.
Appellant argues that this evidence was insufficient to sustain a conviction of first-degree murder in that the Commonwealth did not prove premeditation. However, as we recently said in Commonwealth v. Ewing, 439 Pa. 88, 92, 264 A.2d 661 (1970): ". . . [T]his Court has consistently held that the use of a gun on a vital part of the deceased's body raises the presumption that the defendant shot with the intent to kill the deceased [citations omitted] . . . . In the absence of any other ...