No. 250 Special Transfer Docket, No. 251 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Entered March 15, 1978 as to Bills of Information Nos. 69-71 of January Term, 1977.
Gerald A. Stein, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
[ 271 Pa. Super. Page 385]
Appellant was charged by information with Criminal Conspiracy, Possession of Instruments of Crime and Murder. As the Commonwealth refused to certify that the homicide rose no higher than second degree murder and the appellant requested to be tried non-jury, a court en banc was convened in accordance with Pa.R.Crim.P. Rule 353. Appellant was thereafter found guilty by a unanimous vote of the panel of first degree murder as well as the conspiracy and possession charges. Appellant filed post verdict motions nunc pro tunc with permission of the court. These motions were denied, and he was sentenced to a life term on the murder conviction and lesser terms on the non-homicide charges.
On appeal, the following issues raised by appellant are preserved for our review: (1) whether the evidence established as a matter of law that appellant was guilty of voluntary manslaughter and not murder; (2) whether the evidence was sufficient to convict on the criminal conspiracy charge; (3) whether appellant knowingly, intelligently and
[ 271 Pa. Super. Page 386]
voluntarily waived his right to a jury trial; and (4) whether the procedure set out in Rule 353 is unconstitutional.
The evidence below disclosed that appellant entered decedent's, Otis Castleberry's, luncheonette on December 8, 1976, to purchase food. A dispute arose as to the amount of change appellant received from the cashier, and Castleberry and Madison proceeded to engage in a heated argument which resulted in Castleberry producing a gun and ordering appellant from the store. Outside, Madison was joined by another individual, Tyrone Smith, and they set out on a brief drive in appellant's car. At some point, appellant parked the car, and Smith got out to relieve himself. When Smith returned to the car, he noticed a shotgun on the rear seat which had not previously been there. Madison then stated that he wanted to talk to Castleberry the same way decedent talked to him -- with a gun in his face. The two men then drove back to the store, and entered. Madison was armed with the shotgun at his side, and Smith stood behind him. After additional mutual threats were exchanged between decedent and Madison, Castleberry reached for his gun, and appellant, while backing away, fired at the decedent and fled the store with Smith. The cause of death was established as a shotgun wound of the neck and chest. Both men were thereafter apprehended, and Smith pled guilty to Third Degree Murder, later testifying against appellant at trial.
Appellant first alleges that the factual scenario presented above, is sufficient, as a matter of law, to convict him of voluntary manslaughter only. In order to sustain a verdict of First Degree Murder, the evidence must establish that the defendant, with specific intent to kill, and absent legal excuse or justification, caused the death of another person. Commonwealth v. Padgett, 465 Pa. 1, 348 A.2d 87 (1975). The specific intent to kill may be found from the intentional use of a deadly weapon upon a vital part of the body. Commonwealth v. Alston, 458 Pa. 412, 317 A.2d 229 (1974).
[ 271 Pa. Super. Page 387]
It is uncontradicted in the instant case that appellant, following a heated argument with the decedent, returned to the scene of the argument a short time later armed with a loaded shotgun. He confronted decedent with the weapon, threatened him, and thereafter fired the shotgun at Castleberry which resulted in his death. No theory of self defense was established within the framework of the facts presented. The lower court chose to reject appellant's testimony as "not being ...