Com. v. White

• Decision Date: 18 March 1971
• Citation: 442 Pa. 461,275 A.2d 75
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Donald WHITE, Appellant.
• Court: Pennsylvania Supreme Court

Page 75

275 A.2d 75

442 Pa. 461

COMMONWEALTH of Pennsylvania, Appellee, v. Donald WHITE, Appellant.

Supreme Court of Pennsylvania.

March 18, 1971.

Mary Bell Hammerman, Philadelphia, for appellant

Arlen Specter, Dist. Atty., James D. Crawford, Deputy Dist. Atty., Louis Perez, Jr., Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

This is an appeal from a judgment of sentence of life imprisonment imposed on appellant after his conviction by a jury on a charge of first-degree murder and after denial of his post-trial motions.

At appellant's trial, the Commonwealth produced the following evidence:

On Saturday evening, August 14, 1965, at approximately 10 p.m., appellant entered a small crowded bar in Philadelphia. Lucille Johnson testified that she was sitting within one or two feet of the deceased when she saw appellant walk right up in front of the deceased and extend his right hand as if offering to shake hands with Holloway. When she had turned her head to talk to another person to her right, Miss Johnson heard three loud noises like the explosion of firecrackers. She turned back to her left and saw the appellant running toward the back of the bar. Eugene Holloway was face down on the floor.

Two other witnesses, LeRoy Stratten and his twenty-three year old grandson Ernest, were on Holloway's left in the bar that evening. They both saw appellant running to the back of the bar immediately after they heard the shots fired. Ernest Stratten noticed a shiny object, three or four inches long, in the appellant's hand.

William Holloway, uncle of the deceased, was standing at the bar. After the second shot, he turned around and saw the appellant with his right arm bent at the elbow and extended in a horizontal position, standing in front of the deceased. No witness saw anyone but the appellant in front of the deceased at the time the shots were fired. Dr. Edward J. Burke, Police Laboratory Director, testified that tests taken on a shirt removed from the deceased's body after he was shot established, in his expert opinion, that the muzzle of the murder weapon was from one and one-half to two and one-half feet from the deceased when he was shot.

Appellant argues that this evidence was insufficient to sustain a conviction of first-degree murder in that the Commonwealth did not prove premeditation. However, as we recently said in Commonwealth v. Ewing, 439 Pa. 88, 92, 264 A.2d 661, 663 (1970):

'* * * (T)his Court has consistently held 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 (citations omitted). * * * In the absence of any other evidence as to the defendant's intent, it is sufficient to sustain a finding of murder in the first degree.' (Emphasis in original.)

It is hard to imagine a more clear example of malice, intent and premeditation than one where, without evidence of provocation, a defendant walks into a bar, walks right up to within two feet of another person and shoots three bullets into a vital part of that person's body.

Appellant's explanation for the same observed facts was that he had just finished shaking hands with the victim and was heading to the rear of the bar when he heard an explosion. He turned and saw Holloway on the floor and heard a voice say 'Somebody shot Gene.' He ran out of the bar as quickly as possible because he was below the legal age and he believed he would be 'harassed' by the police for being in a bar. He was carrying either sunglasses or a pack of cigarettes in his hand, and it was either of these two items which could have been the shiny object that others saw.

Appellant argues that his conviction was based on mere speculation, that his explanation was as likely as the Commonwealth's. Although the Commonwealth could not produce the gun, and none of the witnesses actually saw the gun, we believe that the testimony of the witnesses that only appellant was in close proximity to the deceased when the shots were fired, that he was seen with his arm extended, and that he was seen running away immediately after the shots were...