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decided: October 8, 1976.



Cecil B. Moore, Philadelphia, for appellant.

Ralph B. D'Iorio, Asst. Dist. Atty., Chief, Appeals Div., Vram Nedurian, Jr., Asst. Dist. Atty., Newtown Square, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.

Author: Eagen

[ 468 Pa. Page 579]


Appellant Phillip Robinson was convicted by a jury in Delaware County of murder of the first degree in the death by shooting of Louis Ortiz and of two counts each of assault and battery, aggravated assault and battery, and assault and battery with intent to kill in the shootings of Robinson's estranged wife, Vicky Hernandez Robinson, and her employer, Frank Harris, the manager and bartender of the establishment where she worked as a part-time waitress. He was also convicted of carrying a firearm without a license and of carrying a concealed deadly weapon with the intent to use it to harm another person. These appeals followed the denial of posttrial motions and the imposition of sentences.*fn1

Initially, Robinson asserts that the evidence adduced at his trial was insufficient as a matter of law to convict him of murder of the first degree. The well-established test for determining the sufficiency of the evidence for a criminal conviction is "whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth

[ 468 Pa. Page 580]

    and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt." Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827, 829 (1976). Viewed in this light, the evidence reveals the following pertinent facts.

At the time of the events in question, Robinson and his wife were separated, but he had repeatedly threatened to kill her if she did not return to him. On the evening of May 26, 1973, he arrived at the bar where she worked and indicated his desire to see her. When informed that she was late for work, he engaged her employer, Harris, in a conversation during the course of which he accused Harris of having an affair with his wife, which Harris denied. When Mrs. Robinson subsequently arrived, Robinson attempted to speak with her, but she ignored him and went into the office to hang up her coat. When she returned to the bar, her husband again attempted to talk to her, but she told him that she had to work. At this point Harris came out of the storage room and asked Robinson to leave his wife alone because she had a job to do. Robinson replied that he was "not going to start any trouble in your place of business" and walked out the door.

A patron of the bar who was seated near the window, however, observed Robinson removing an object from the glove compartment of his parked car, and, within three or four minutes, Robinson returned with a gun in his hand, walked up to the bar, and asked Harris what he was going to do now. He then turned to his right and shot Ortiz, a customer who was seated on a nearby barstool. As Ortiz attempted to rise, Robinson shot him again. He next shot his wife in the shoulder as she attempted to flee and shot Harris in the back as he attempted to come to the aid of Mrs. Robinson. Robinson pulled his wife, bleeding profusely, toward the door. She begged him not to shoot again, but he repeated three

[ 468 Pa. Page 581]

    times the words, "I told you I would kill you." He placed the gun against her heart, but she managed to twist loose as he shot again, and the bullet entered under her left arm. She fell to the floor, and, as she attempted to rise, he shot her again in the right side and fled the premises.

Robinson was subsequently apprehended in his car by the police after an extensive chase. On the seat beside him was a .25 caliber automatic revolver which was then unloaded but cocked. He was taken to the Crozier-Chester Medical Center to be identified by the victims. When his wife identified him, he looked at her and said, "Die." Mrs. Robinson and Harris eventually recovered from their wounds. One of the bullets which struck Ortiz, however, caused severe damage to the spinal area and left his legs paralyzed. After an operation during which one bullet was removed from his thoracic spine and another from his leg, his vital signs were good, and he was subsequently transferred to the Veterans Administration Hospital in Wilmington, Delaware, for further treatment. He died there on June 11, 1973.

An autopsy revealed that over an inch of Ortiz's spinal cord had degenerated and his lungs had filled with fluid. The doctor who conducted the autopsy opined that the swelling caused by the gunshot wound had interfered with the blood supply to the spinal cord, and that this in turn had caused a gradual paralysis of the respiratory muscles so that the "actual mode of death was probably a respiratory one." He stated he was certain the gunshot wound was the cause of death.

In order for Robinson to be convicted of murder of the first degree for the death of Ortiz, the evidence must be sufficient to prove beyond a reasonable doubt that the death resulted from a "wilful, deliberate and premeditated killing"*fn2 perpetrated by Robinson. It is contended

[ 468 Pa. Page 582]

    this evidence was insufficient both to prove the requisite willfulness, deliberateness, and premeditation in the shooting of Ortiz, and the requisite causal relationship between his own actions and Ortiz's death. We disagree.

It is argued that the evidence with regard to Ortiz "showed at best that defendant fired at random." Certainly the evidence of malice aforethought and specific intent to kill was stronger with regard to the shootings of Mrs. Robinson and Harris, who did not die, than it was with regard to that of Ortiz, who did. Aside from the evidence of the shooting itself, there was no direct evidence that Robinson was antagonistic toward Ortiz or indeed that he was even aware of his existence.*fn3 The evidence, however, clearly does not indicate that Robinson fired at random when he shot Ortiz. Rather, Harris testified that Robinson turned to his right, pointed the gun at Ortiz and fired, and that, after both Ortiz and the stool on which he was sitting toppled to the floor, Robinson shot him again as he tried to get up. The evidence is uncontroverted that Ortiz was indeed shot twice. From these facts the jury could properly find beyond a reasonable doubt the specific intent to kill necessary to convict appellant of first-degree murder. As this Court has previously stated: "'The use of a deadly weapon directed at a vital organ of another human being justifies a factual

[ 468 Pa. Page 583]

    presumption that the actor intended death unless the testimony contains additional evidence that would demonstrate a contrary intent.'" Commonwealth v. Bricker, 458 Pa. 367, 371-72, 326 A.2d 279 (1974), quoting from Commonwealth v. Alston, 458 Pa. 412, 416, 317 A.2d 229, 231 (1974). In the instant case there was no additional evidence demonstrating a contrary intent. Rather, the evidence that Robinson shot Ortiz twice, with an interval between the two shots,*fn4 established the inference of a specific intent to kill -- willful, deliberate and premeditated. It is well-settled that the period of premeditation necessary to form the requisite specific intent may be very brief. 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). In addition, although proof of a motive is not necessary to establish a specific intent to kill, the jury from the testimony might reasonably have inferred that Robinson deliberately intended to vent his malice toward his wife and Harris, both of whom had indicated to him before he left to get his gun that he was interfering with the bar's business, not only against them directly, but against a customer of the bar as well.

Next, because the physician who operated on Ortiz and treated him subsequently at the Crozier-Chester Medical Center testified that the patient's vital signs were good after the operation and that his condition was subsequently good enough for him to survive a transfer to the hospital in Delaware, and because "the Commonwealth failed to produce one scintilla of evidence concerning any event from the transfer of Louis Ortiz from Crozier-Chester Medical Center to the Veterans Hospital in Wilmington, Delaware to the actual autopsy," Robinson argues that the evidence was insufficient to prove

[ 468 Pa. Page 584]

    beyond a reasonable doubt that the gunshot wound he inflicted upon Ortiz caused his death. Robinson overlooks, however, the additional testimony of the doctor who performed the operation that, though Ortiz's vital signs were good after the operation, the severity of his injury had left him in "a very fragile condition," and that the doctor had not been surprised to learn that Ortiz had subsequently died in Delaware. Further, the doctor who performed the autopsy not only concluded with certainty that the gunshot wound was the cause of death, but he supported this ...

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