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filed: May 31, 1985.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, No. 4043/1982.


William L. Goldman, Doylestown, for appellant.

William F. Merz, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Wieand, Montemuro and Cercone, JJ.

Author: Wieand

[ 343 Pa. Super. Page 179]

Craig Datesman was sentenced to prison for life after a jury found him guilty of first degree murder in the shooting death of Jeffrey Birilli. On direct appeal, Datesman contends (1) that the evidence was insufficient to sustain the jury's verdict; (2) that the verdict was against the weight of the evidence; (3) that the trial court erred when it sustained challenges for cause to prospective jurors who were opposed to capital punishment; (4) that trial counsel was ineffective because he allowed the empanelling of a "death qualified" jury; (5) that the trial court erred in permitting the prosecution to refer to appellant's silence following

[ 343 Pa. Super. Page 180]

    arrest; and (6) that the trial court erred by allowing the murder weapon to go out with the jury during deliberations. We find no merit in these contentions and, therefore, affirm the judgment of sentence.

The test for the sufficiency of the evidence is whether, after we have viewed all the evidence in the light most favorable to the Commonwealth and have drawn all reasonable inferences therefrom in favor of the Commonwealth, the evidence is sufficient in law to enable a jury to find each and every element of the crime charged beyond a reasonable doubt. Commonwealth v. Carter, 329 Pa. Super. 490, 495, 478 A.2d 1286, 1288 (1984); Commonwealth v. Nelson, 320 Pa. Super. 488, 491, 467 A.2d 638, 640 (1983).

The evidence demonstrated facts recited in the opinion of the trial court as follows:

On September 12, 1982, the victim and two women drove to the residence of Defendant to talk to him about money he owed two of them and which they desired to collect. They parked their van in a parking lot adjacent to the apartment building where Defendant lived and went up to the second-floor apartment he shared with his girlfriend.

A discussion about the money was held in the apartment and then, at the request of the Defendant's girlfriend, Defendant, the victim and the two women moved outside. The conversation continued on the outside steps and resulted in the victim striking Defendant. A brief scuffle ensued between the two men.

The victim saw two men approaching and apparently believed they were coming to join Defendant in the fight. He then told Defendant he would get his "boys" to fight also. Witnesses testified that Defendant replied he wanted to put a stop to the situation right then and was going to get his gun and shoot the victim.

The victim and the women then walked toward the van in preparation of leaving and Defendant went back to his apartment. However, Defendant returned a few minutes later and approached the van with a shotgun.

[ 343 Pa. Super. Page 181]

At this point, the victim was at the van, half sitting, half standing by the opened door. Defendant loaded the gun, raised it to his shoulder and according to testimony shouted to one of the women to move out of the way because he was going to shoot the victim. Defendant then fired the gun from approximately 20 feet from the victim and hit the victim in the neck. The victim died the following day.

Defendant testified that he was afraid for himself and his girlfriend, because the victim had said, ". . . he was going to get his boys or take what he wants." Defendant stated that he knew the victim owned a revolver. Finally, Defendant testified that he did not remember pulling the trigger and did not do so deliberately.

42 Bucks Co.L.Rep. 284, 285 (1983).

This evidence was sufficient to support a finding of murder in the first degree. "An intent to kill can be formed in a fraction of a second. All that is required is a conscious, fully formed intent to bring about the death of another person." Commonwealth v. Davis, 331 Pa. Super. 59, 64, 479 A.2d 1077, 1080 (1984) (citation omitted). See also: Commonwealth v. Thornton, 494 Pa. 260, 267, 431 A.2d 248, 252 (1981). Proof of an intent to kill "may be inferred from the circumstances. If, from all the facts attending the killing, the jury can fully, reasonably, and satisfactorily infer the existence of the intention to kill . . . they will be warranted in doing so. He who uses upon the body of another, at some vital part, with a manifest intention to use it upon him, a deadly weapon, as an axe, a gun, a knife or a pistol, must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill; and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act." Commonwealth v. O'Searo, 466 Pa. 224, 236-237, 352 A.2d 30, 36 (1976), quoting Commonwealth v. Drum, 58 Pa. 9, 16 (1868). A fully formed intent to kill, therefore, may be inferred from the use of a deadly weapon upon a vital part of another's body. Commonwealth v. Thornton, supra,

[ 343 Pa. Super. Page 182494]

Pa. at 267, 431 A.2d at 252; Commonwealth v. Monaco, 327 Pa. Super. 369, 376, 475 A.2d 843, 847 (1984); Commonwealth v. Hartzell, 320 Pa. Super. 249, 257, 467 A.2d 22, 27 (1983).

In the instant case, appellant had returned to the safety of his own apartment after the initial fracas. When he re-emerged with a shotgun, he shouted to a companion of the victim to get out of the way, lifted the shotgun to his shoulder, took deliberate aim at his victim, and shot him in the neck from a distance of approximately twenty feet. From this evidence, a jury could find a killing that was willful, deliberate, and premeditated. Appellant's testimony that he feared for his life and for that of his girlfriend because Birilli had threatened to "get his boys" and "take what he wants" was for the jury, which could believe some, all or none of it. See: Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979); Commonwealth v. Nelson, supra, 320 Pa. Super. at 491, 467 A.2d at 640.

A new trial will be granted on the grounds that the verdict is against the weight of the evidence only where the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Jensch, 322 Pa. Super. 304, 313, 469 A.2d 632, 636 (1983). Whether to grant a new trial for this reason is committed to the sound discretion of the trial court. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982); Commonwealth v. Jensch, supra, 322 Pa. Super. at 313, 469 A.2d at 636. The trial court's decision will be reversed on appeal only for an abuse of discretion. Commonwealth v. Jensch, supra, 322 Pa. Superior Ct. at 313, 469 A.2d at ...

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