No. 564 January Term, 1976 No. 25 January Term, 1977 Appeal from Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal Division, Nos. 976 and 977, 1975
Richard D. Winters, Norristown, for appellant.
Kenneth G. Biehn, Dist. Atty., Peter F. Schenck, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., did not participate in the consideration or decision of this case. Roberts, J., filed a concurring opinion. Nix, J., filed a dissenting opinion.
Appellant, Edward Holzer, was convicted in a jury trial of first degree murder, robbery and conspiracy and sentenced to life imprisonment. He is now appealing the judgments of sentence.
While appellant does not raise the issue of sufficiency of the evidence to convict, the Supreme Court has an independent obligation to determine if the evidence is sufficient to support a verdict of murder in the first degree. Act of February 15, 1870, P.L. 15 § 2, 19 P.S. § 1187 (1964). The test to be applied in reviewing the conviction of first degree murder is whether, viewing all of the evidence at trial in the light most favorable to the Commonwealth, the verdict winner, 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. Kichline, 468 Pa. 265, 361 A.2d 282, 285-86 (1976). Further, while it is clear that a criminal conviction may not be based upon mere speculation or conjecture, evidence may still be found sufficient even though wholly circumstantial. Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847, 849 (1976).
Murder of the first degree is a criminal homicide committed by an intentional killing. Act of March 26, 1974, P.L. 213, No. 46, § 4(a), 18 P.C.S. § 2502(a) (Supp.1977-78). Specific intent to kill is the element which distinguishes murder of the first degree from the lesser grades of murder. Commonwealth v. Moore, 473 Pa. 169, 373 A.2d 1101, 1104 (1977). Moreover, specific intent to kill may be inferred from the use of a deadly weapon directed at a vital organ of the victim. Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976).
A review of the evidence adduced at trial, read in the light most favorable to the Commonwealth, reveals the following. The body of Earl D'Aras was found, on the evening of March 26, 1975 at approximately 5 p. m., in a sporting goods
store in Lower Southampton Township, Bucks County. He had last been seen alive at 4:20 p. m., possibly as late as 4:50 p. m. The victim died as a result of multiple injuries -- his skull had been fractured, his throat had been slit five times severing the jugular vein and a hunting knife with a seveninch blade had been thrust to the hilt into his back, penetrating the heart.
The store had been ransacked. The cash register drawer had been opened and a sum of approximately $200.00 was missing; the gun case had been broken open and eight handguns removed; the knife case had been smashed and one knife of the type which pierced D'Aras' back was missing; and the ammunition case had been found in a condition of disarray (although it could not be determined with certainty if any ammunition had been taken).
A witness, Jean Hendy, observed appellant and a younger boy in the parking lot of the shopping center in which the store is located, at approximately 4:50 p. m. the day of the murder, standing near a blue Volkswagen. She noted the license number on a slip of paper. Appellant and the other boy walked around the corner of the building to the front of the shopping center in the direction of the sporting goods ...