No. 318 Special Transfer Docket, Appeal from Judgments of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 5060-76.
Joseph A. Ciccitto, Assistant Public Defender, Norristown, for appellant.
John Salvucci, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cercone, President Judge, and Roberts and Lipez, JJ.*fn*
[ 273 Pa. Super. Page 323]
On May 27, 1977, a jury convicted appellant of murder of the first degree, robbery, burglary, theft of a firearm, theft of a motor vehicle, recklessly endangering another person, resisting arrest, possession of an instrument of crime, unauthorized use of an automobile and carrying a firearm without a license. After denying post-verdict motions, the trial
[ 273 Pa. Super. Page 324]
court sentenced appellant to a mandatory term of life imprisonment for murder of the first degree, imposed concurrent terms of imprisonment of 10 to 20 years for burglary, 3 1/2 to 7 years for theft of a firearm, 3 1/2 to 7 years for unauthorized use of a motor vehicle, 2 1/2 to 5 years for possession of an instrument of crime and 1 to 2 years for resisting arrest, and suspended sentence on the remaining charges. Appellant contends that (1) the evidence is insufficient to support the convictions of murder of the first degree, burglary, possession of an instrument of crime, theft of an automobile and carrying a firearm without a license; (2) the trial court erred in permitting the Commonwealth to demonstrate the path of the fatal bullet; (3) the trial court erred in instructing the jury that it could treat defense counsel's admissions as evidence proved against appellant; (4) arrest was without probable cause; (5) a statement he gave police should have been suppressed as involuntary; (6) post-verdict counsel was ineffective for failing to raise in post-verdict motions issues Nos. 2-4; and (7) the trial court placed him twice in jeopardy by replacing the original sentence imposed with a harsher one. We affirm.
Appellant argues that the evidence was insufficient to prove specific intent necessary for murder of the first degree. Appellant drove one night in his black and white 1969 Lincoln Continental to a shopping mall and broke into one of the buildings. A policeman responded to the silent burglar alarm, discovered appellant attempting to leave and placed him in custody. While the officer conducted appellant to a patrol car, appellant managed to unbuckle the officer's holster and draw the revolver. The two fought for control of the gun. Appellant prevailed and fired twice. One of the bullets entered the officer's right shoulder and proceeded through his skull, killing him.
This evidence is sufficient to prove specific intent required for conviction of murder of the first degree. Appellant argues that the rule that an inference of specific intent to kill may arise from use of a deadly weapon upon a vital part of the body does not apply because he fired the gun at the
[ 273 Pa. Super. Page 325]
officer's shoulder. In Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970), the Court held that an inference of specific intent to kill arose where the defendant shot the victim in the arm and the bullet, traveling in the usual straight path, entered the heart, lungs and liver. As in Hornberger, the bullet appellant fired entered a vital part of the victim's body while continuing on a straight path after passing through a limb.*fn1
Appellant challenges sufficiency of the evidence to support conviction on 5 of the other charges. Appellant did not raise any of these issues in post-verdict motions, however, and the post-verdict court did not consider them. Thus, the claims are not preserved for ...