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COMMONWEALTH v. ALSTON (03/26/74)

decided: March 26, 1974.

COMMONWEALTH
v.
ALSTON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 1163 of 1972, in case of Commonwealth of Pennsylvania v. Willie Patrick Alston.

COUNSEL

William B. Moyer, with him William T. Renz, for appellant.

Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Roberts and Mr. Justice Manderino concur in the result.

Author: Nix

[ 458 Pa. Page 414]

Appellant, Willie Patrick Alston, entered a plea of guilty to the charge of murder generally and after a degree of guilt hearing was adjudged guilty of murder in the first degree.*fn1 A sentence of life imprisonment was imposed. This direct appeal challenges the fixing of the degree at first degree, there is no question raised as to the validity of the plea. We now affirm.

We have consistently held that where a defendant is found guilty of first degree murder, following a plea of guilty to murder generally, we will on direct appeal entertain his assignments of errors relating to the degree of guilt hearing. Commonwealth v. Riggins, 452 Pa. 411, 305 A.2d 31 (1973); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d 537 (1971) and Commonwealth v. Stokes, 426 Pa. 265, 268 n.5, 232 A.2d 193, 194 n.5 (1967). The evidence produced at the degree of guilt hearing established that appellant and Percy Johnson agreed on a date prior to the incident to commit a robbery of a branch office of the Philadelphia National Bank located in the Midway Shopping Center of Bristol Township, Bucks County. In preparation,

[ 458 Pa. Page 415]

    the appellant printed two notes to be handed to the tellers announcing their intention and procured a revolver with six cartridges from an acquaintance.*fn2 On March 29, 1972, the date of the robbery, appellant and Johnson were driven to the bank in a vehicle owned and operated by a friend, Robert Wilson. The automobile contained two additional passengers. Upon arriving at the bank, appellant and Johnson left the vehicle armed with the weapon procured by the appellant. After completing the intended robbery, the appellant and Johnson returned to the vehicle that had brought them to the scene and began their escape. They encountered an unmarked police vehicle containing the victim and his partner. After ordering the vehicle in which appellant was a passenger to stop, as Officer Stuckey left his vehicle and approached the vehicle of the appellant, he was shot and killed by appellant. At the time that Officer Stuckey was shot the muzzle of the weapon was approximately four feet from him and the bullet struck him in the chest.*fn3

The factor that distinguishes first degree non-felony murder from murder in the second degree is the specific intent to kill. Commonwealth v. Mosley, 444 Pa. 134, 279 A.2d 174 (1971); Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970); Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (1970); Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970). A specific intent to kill may be found from the intentional

[ 458 Pa. Page 416]

    use of a deadly weapon upon a vital part of the body. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972); Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970). The use of a deadly weapon directed at a vital organ of another human being justifies a factual presumption that the actor intended death unless the testimony contains additional evidence that would demonstrate a contrary intent. We do not find any evidence offered during the degree of guilt hearing that would suggest a contrary intent.

Appellant argues that he only fired in response to a shot fired apparently by the officers. The credible evidence offered during the hearing justifies a rejection of this version of the occurrence and a finding that appellant fired first.*fn4 However, assuming arguendo appellant's account that he fired after one of the officers had discharged their weapon it would not rebut the presumption that when he did fire his weapon, he intended to kill Officer Stuckey. Our law has never recognized any justification, excuse or mitigating circumstances for using ...


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