Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1972, No. 406, in case of Commonwealth of Pennsylvania v. Thomas White.
John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
James Garrett and David Richman, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Price, J. Hoffman, J., joins in this dissenting opinion.
[ 229 Pa. Super. Page 281]
Appellant Thomas White was indicted and tried at February Term 1972, Nos. 406-408, Court of Common Pleas of Philadelphia County, for attempt with intent to kill, carrying firearms on a public street, and playfully pointing and discharging a deadly weapon. The charges arose out of an incident which occurred on December 25, 1971, shortly after midnight, when during what the trial judge described as a Dodge City-style neighborhood quarrel, appellant fired a handgun from the front steps of his mother's house in the direction of several neighbors. At a trial on May 24, 1972 before the Honorable Joseph L. McGlynn, Jr., sitting without a jury, three witnesses testified that they saw appellant fire the gun. Two of these witnesses specifically testified that they saw appellant "point" the gun. The trial judge found appellant guilty of the charges and sentenced him to not less than one year nor more than two years. The issue presented to this Court is whether the evidence presented by the Commonwealth was sufficient to convict appellant of attempt with intent
[ 229 Pa. Super. Page 282]
to kill, specifically, whether the Commonwealth had demonstrated appellant's intent to commit murder.*fn1
In Commonwealth v. Harris, 194 Pa. Superior Ct. 600, 169 A.2d 576 (1961), we affirmed per curiam on the opinion of the lower court a conviction under 18 P.S. § 4711 for shooting with intent to murder. The lower court had found the requisite intent to murder from the fact that the defendant had fired four shots from a gun, directly down a narrow alley at a police car in which a police officer was sitting. (All four shots missed the police officer). In Commonwealth v. DelMarmol et al., 206 Pa. Superior Ct. 512, 516, 214 A.2d 264, 266 (1965), allocatur denied, a burglary case, this Court stated that "Felonious intent . . . may be inferred from actions as well as words provided those actions bear a reasonable relation to the commission of the felony." See also Commonwealth v. Reynolds, 208 Pa. Superior Ct. 366, 222 A.2d 474 (1966). In the case before this Court, appellant was seen to "point" and fire a deadly weapon in the direction of several neighbors. Testimony indicated that the bullet narrowly missed striking the head of one of those neighbors. Notwithstanding this, appellant would have us find that the evidence was insufficient to permit a determination that appellant had possessed the intent to commit murder. This Court cannot so find. Unlike Commonwealth v. Ellis, 349 Pa. 402, 37 A.2d 504 (1944), an attempted rape case where the circumstances
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indicated no intention on the part of the defendant to commit any felonious act, and unlike Commonwealth v. Young, 446 Pa. 122, 285 A.2d 499 (1971) where the evidence merely indicated that random shots had been fired (not in the direction of any person), the fact that appellant here actually "pointed" the gun and narrowly missed hitting someone was sufficient to permit the trier of fact to infer that appellant possessed the requisite intent to commit murder.
As the Supreme Court of New Jersey aptly put it in 1793:
"The designs of the heart can rarely be proved in a direct manner by the testimony of witnesses. When a man designs to perpetrate a scheme of wickedness, he seldom communicates his intention unless to an accomplice; hence the intent must in most cases be collected from the circumstances. These may sometimes prove deceptive; but when, without any forced construction, they speak the intention in a language clear ...