James M. McNamara, Public Defender, Doylestown, for appellant.
Stephen B. Harris, First Asst. Dist. Atty., Kenneth G. Biehn, Dist. Atty. of Bucks County, Doylestown, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Appellant Amos Paul Rose was convicted on May 30, 1972 in a jury trial of murder in the first degree and sentenced to life imprisonment. On direct appeal this Court reversed and remanded for a new trial. Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974). We held that the trial court erred in instructing the jury that the defendant bore the burden of proving intoxication sufficient to lower the crime from first to second degree murder.
On remand, appellant pled guilty to murder generally. At the degree of guilt hearing, the Commonwealth and the defense stipulated to certain evidence from the preceding trial. In addition, the defense presented expert testimony on the effect of defendant's level of intoxication on his mental state at the time of the shooting. The court found appellant guilty of murder in the first degree and sentenced him to life imprisonment. This direct appeal ensued.*fn1 We affirm.
Appellant argues that the Commonwealth's evidence is insufficient to prove beyond a reasonable doubt an essential element of murder in the first degree, the intent to kill.*fn2 Specifically, he contends that the evidence of intoxication
presented at the degree of guilt hearing is inconsistent with such a finding and requires reversal.
The evidence shows that at the time of the murder appellant's blood alcohol content was approximately twenty-four hundredths of one percent.*fn3 The record contains testimony by two experts on the effect of such concentration on the appellant's mental state. Dr. Frederick Rieders, a toxicologist called by the Commonwealth at the trial, stated that he could not express an opinion on the matter because the effect would vary depending upon the individual and the circumstances involved. He further stated that if a person is able to perform highly skillful tasks, which are not conditioned reflexes, then the depressive effect of alcohol has not gone to the point of preventing the "appropriate associated thinking processes." Stanley J. Broskey, a forensic scientist called by the defense, took issue with this testimony, stating that any person thus intoxicated would be unable to form a specific intent to kill. There is also testimony concerning defendant's actions before and after the shooting tending to show an awareness of his actions and of the circumstances of the shooting and an attempt to avoid detection.
The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth ...