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filed: November 19, 1982.


No. 71 Harrisburg, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, No. 826, A, C.D. 1980.


Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Brosky, Wieand and Montemuro, JJ.

Author: Wieand

[ 306 Pa. Super. Page 510]

John Price entered a plea of guilty to a general charge of criminal homicide in exchange for the Commonwealth's agreement not to seek a death sentence. An evidentiary hearing was held to determine the degree of guilt and also,

[ 306 Pa. Super. Page 511]

    by agreement, to determine the issue of guilt or innocence on a separate charge of recklessly endangering the decedent's brother.*fn1 Price was found guilty of murder in the first degree and guilty also of recklessly endangering. He was sentenced to prison for the term of his natural life; and a concurrent term of not less than one nor more than two years was imposed for recklessly endangering. On direct appeal, Price is represented by new counsel who argues: (1) that the evidence was insufficient to sustain a finding of murder in the first degree, and (2) that trial counsel was ineffective. There is no merit in these contentions; and, therefore, we affirm the judgment of sentence.

Murder in the first degree is defined as causing the death of another human being by "any . . . kind of willful, deliberate, and premedidated killing." 18 Pa.C.S. ยง 2501(a), 2502(a). On appellate review, "we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact . . . . To do so would require an assessment of the credibility of the testimony and that is clearly not our function." Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982), quoting Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976). Rather, we view the entire record in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, determine whether there was sufficient evidence to enable the trier of the facts to find every element of the crime beyond a reasonable doubt. Commonwealth v. Pronkoskie, supra, 498 Pa. at 248, 445 A.2d at 1204; Commonwealth v. Hudson, 489 Pa. 620, 625, 414 A.2d 1381, 1384 (1980); Commonwealth v. Horsey, 481 Pa. 470, 472, 393 A.2d 1, 2 (1978). See also: Commonwealth v. Gordon, 490 Pa. 234, 236, 416 A.2d 87, 88 (1980); Commonwealth v. Ash, 482 Pa. 590, 394 A.2d 479 (1978).

In the instant case, appellant killed an unarmed Edward Stern at or about 5:00 o'clock, P.M., on May 14, 1980, by pumping four rifle shots into Stern's body while Stern was standing on a public street in the City of Harrisburg.

[ 306 Pa. Super. Page 512]

Appellant contended, in an effort to obtain a reduction in the degree of the crime, that he had been intoxicated. His evidence and also that of the Commonwealth showed that he had been drinking. However, drinking and intoxication are not synonymous terms. A defendant must be overwhelmed or overpowered by alcohol to the point of losing his or her faculties so as to be incapable of forming a specific intent to kill before an act of murder will be reduced to murder in the third degree. Commonwealth v. Reiff, 489 Pa. 12, 15, 413 A.2d 672, 674 (1980); Commonwealth v. Duncan, 437 Pa. 319, 322, 263 A.2d 345, 347 (1970); Commonwealth v. Barnosky, 436 Pa. 59, 62-63, 258 A.2d 512, 514 (1969); Commonwealth v. Walters, 431 Pa. 74, 82-83, 244 A.2d 757, 762 (1968). See also: Commonwealth v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981).

There was ample evidence from which the trial judge could find that appellant was not so overwhelmed by alcohol as to be unable to form a specific intent to kill. Earlier the same day, appellant and Edward Stern had been present during and, ultimately drawn into, an altercation at Peter Pope's bar in Harrisburg. Stern and his brother thereafter purchased a half pint of liquor which they were drinking when appellant, who had also been drinking, approached and requested money. When they refused, appellant was overheard to make a threat to kill Edward Stern. At or about 3:00 o'clock, P.M., appellant drove a vehicle without incident and, later, took a short nap at the home of his sister. He returned on foot shortly before 5:00 o'clock, P.M., found Edward Stern and his brother, John, talking with Willie Jackson, and, without a word, fired six shots at the victim at close range. ...

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