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submitted: January 20, 1984.


No. 2684 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Luzerne County, Criminal Division, at No. 1196 of 1982.


John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.

Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Brosky, Wieand and Hester, JJ.

Author: Brosky

[ 330 Pa. Super. Page 71]

This is an appeal from the order denying appellant bail.*fn1 Appellant contends that the court below erred in denying bail because the Commonwealth failed to prove either of the alternate grounds that he had committed a capital offense or that he would not appear for trial regardless of the character or the amount of the bail. We find that the Commonwealth satisfied its burden of proof as to the former ground and, accordingly, affirm the order of the lower court.

On August 15, 1982, appellant was arrested and charged with criminal homicide in the death of one Paul Kulina. He was then remanded to Luzerne County Prison without bail.

On September 2, 1982, a preliminary hearing was held at which it was held that a prima facie case had been established. Appellant then petitioned the court below to establish

[ 330 Pa. Super. Page 72]

    bail. After a hearing, this petition was denied. This appeal followed.

Appellant contends that at the bail hearing the Commonwealth failed to establish either of the two alternative grounds for denial of bail. He first argues that the Commonwealth did not prove that he had committed a capital offense. Appellant correctly states the law that:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great . . . .

42 Pa.C.S.A. § 5701; see Pa. Const. Art. I, § 14.

A capital offense within this section is a crime for which the death penalty may be imposed. Commonwealth v. Caye, 447 Pa. 213, 290 A.2d 244 (1972). Only murder in the first degree is so punishable. Id., see 18 Pa.C.S.A. § 2502(a), 42 Pa.C.S.A. § 9711.*fn2

[ 330 Pa. Super. Page 73]

At a bail hearing, the Commonwealth bears the burden of proof. Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972). It can satisfy its burden to prove that a defendant is not entitled to bail by establishing a prima facie case of murder in the first degree.*fn3 Commonwealth Page 73} v. Farris, 443 Pa. 251, 278 A.2d 906 (1971); Cf. Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (1963).

Instantly, the Commonwealth, at the bail hearing, presented one Joseph Catrone who testified that on August 14, 1982, he was a passenger in a car driven by appellant. He further stated that Paul Kulina came over to the car on the passenger's side and, completely unprovoked, appellant reached across Catrone and shot Kulina in the head. Appellant then pulled away, went off the main road, broke the gun and threw it away. Then, he took the car to a car wash to remove the blood from the right front door.

Appellant contends that based on this evidence the Commonwealth failed to meet its burden of proof because there was no evidence offered that appellant killed the victim with malice aforethought or with premeditation. However, we note that

It is well settled that "the use of a gun on a vital part of the deceased's body raises the presumption that the defendant shot with the intent to kill the deceased." Commonwealth v. Ewing, 439 Pa. 88, 92, 264 A.2d 661, 663 (1970) (emphasis in original). Accord, Commonwealth v. Robinson, 468 Pa. 575, 582-83, 364 A.2d 665, 669 (1976). It is equally well-settled that the period of premeditation necessary to form the specific intent to kill may be very brief. Commonwealth v. Robinson, supra.

Commonwealth v. Thornton, 494 Pa. 260, 267, 431 A.2d 248, 252 (1981). Furthermore, the evidence that appellant shot across Catrone constituted a prima facie showing of an aggravating circumstance under 42 Pa.C.S.A. 9711(d)(7).*fn4

[ 330 Pa. Super. Page 74]

Thus, we find that the Commonwealth did establish a prima facie showing of murder in the first degree and the existence of an aggravating circumstance. Therefore, we conclude that the lower court did not err in denying appellant's petition for bail.*fn5

Accordingly, the order of the lower court is affirmed.*fn6

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