No. 221 March Term, 1977, Appeal from the Judgment of Sentence entered on August 25, 1977 in the Court of Common Pleas, Allegheny County, Criminal Division at No. CC7608399.
Lester G. Nauhaus, Asst. Public Defender, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Eagen, C. J., and O'Brien and Nix, JJ., concur in the result. Roberts and Manderino, JJ., dissent.
Following a jury trial, appellant was convicted in the Court of Common Pleas of Allegheny County of murder in the first degree, robbery, aggravated assault and weapons offenses. Post-verdict motions were denied and appellant was sentenced to a term of life imprisonment to begin upon the expiration of the ten (10) to twenty (20) year sentence imposed for the other offenses. This direct appeal follows.
Appellant first argues that the evidence was insufficient to sustain a verdict of murder in the first degree. In reviewing the sufficiency of the evidence, we must consider the evidence and all reasonable inferences arising therefrom in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973). Viewed thusly, the evidence introduced at trial discloses the following.
At approximately 4:00 a. m., October 29, 1976, appellant and Donald Unger drove into a service station in Pittsburgh and asked Donald Wright, the attendant, to service their vehicle. As the attendant began to service the vehicle, appellant and Unger brandished firearms and ordered him (the attendant) and Norman Schohn, a customer, to enter the building and to lie face down on the floor.
After emptying the cash registers and starting to leave the unlit building appellant said to Unger, "He knows me," referring to the attendant, whereupon Unger and appellant reentered the darkened building. Unger shot the attendant in the back. Appellant fired five shots, striking the attendant in his left shoulder, and hitting the customer three times. All shots were fired at point-blank range while the victims were still lying face down on the concrete floor. The attendant was killed by the shots -- the customer was permanently paralyzed from the waist down. The pathologist who conducted the autopsy testified that both wounds suffered by the attendant were contributing factors to his death, although the shoulder wound was the less severe of the two.
Appellant specifically argues that the Commonwealth failed to meet its burden of proving specific intent to kill, which intent must be demonstrated in order to sustain a verdict of first degree murder. 18 Pa.C.S. § 2502(a) (Supp.1978-79). This argument is premised on our cases which have held that the use of a deadly weapon upon a vital part of the body raises a presumption sufficient to support an inference of the ...