Commonwealth v. Bricker

• Decision Date: 16 October 1974
• Citation: 326 A.2d 279,458 Pa. 367
• Parties: COMMONWEALTH of Pennsylvania v. Robert L. BRICKER, Appellant.
• Court: Pennsylvania Supreme Court

326 A.2d 279

458 Pa. 367

COMMONWEALTH of Pennsylvania v. Robert L. BRICKER, Appellant.

Supreme Court of Pennsylvania.

October 16, 1974.

Harry F. Swanger, Gordon W. Reiselt, Pittsburgh, for appellant.

Robert W. Duggan, Dist. Atty., Carol Mary Los, Asst. Dist. Atty., L R. Paulick, Robert L. Eberhardt, Asst. Dist. Atty Pittsburgh, for appellee.

Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

Appellant Robert L. Bricker, was indicted on a bill containing counts of murder and voluntary manslaughter. On June 22, 1964 appellant represented by court appointed counsel entered a plea of guilty to murder generally. Immediately, thereafter, a degree of guilt hearing was held wherein appellant was found guilty of first degree murder. No post-trial motions were then filed nor appeal taken. A sentence of life imprisonment was imposed.

On April 3, 1969, appellant pursuant to the Post Conviction Hearing Act ^[1] (PCHA) filed a petition alleging Inter alia, that he had not intelligently and voluntarily waived his right to appeal. The hearing court found he had been denied this right and ordered that appellant be permitted to file an appeal as though timely filed. However, that court went on to discuss the remaining issues raised in the petition. Specifically, the PCHA hearing court found appellant's contention that his guilty plea was not knowingly and intelligently entered because it was induced by a coerced confession was without merit and denied relief upon that ground. An appeal was then taken to this Court, wherein we remanded the case to permit appellant an opportunity to file post-trial motions Nunc pro tunc, with leave that appellant, should such motions be denied, would be permitted to file an appeal from the judgment of sentence. Commonwealth v. Bricker, 444 Pa. 476, 282 A.2d 31 (1971). ^[2]

A motion for new trial challenging the sufficiency of the evidence upon which a finding of first degree murder was based and alleging that his guilty plea was not knowingly and intelligently entered because it was induced by a coerced confession, was filed, argued and denied. This appeal followed.

The evidence produced at the degree of guilt hearing established that on December 26, 1963 appellant telephoned Willie Jenkins, the deceased, in reference to a job that Jenkins had discussed with the appellant. They arranged a meeting that night at 10:00 P.M. at which time Jenkins would pick Bricker up in his automobile at a designated location. To that meeting the appellant carried a loaded .45 calibre automatic revolver. Prior to this rendezvous appellant had discussed on several occasions the possibility of robbing Jenkins with one Michael Ayers. There was also testimony to suggest that appellant had reason to believe that the deceased would have a substantial sum of money with him at the time of the meeting. Upon meeting, the two men drove off in the automobile of the deceased. After a short time appellant inquired of the deceased as to the status of the prospective employment. Jenkins is alleged to have responded, 'You are not doing nothing for me, why should I get you a job.' Thereupon appellant removed an automatic revolver from his person, fired two shots at the deceased from a distance of approximately two feet. One shot struck the deceased in the chest and the bullet after entering the body entered the top portion of the heart. The second bullet passed through the arm of the deceased, entered the chest and proceeded downward striking the liver. Appellant then pushed the deceased out of the vehicle and drove from the scene and in so doing unknowingly dragged the deceased for approximately two-hundred feet before the body of the deceased became dislodged from the vehicle. When found the wallet of the deceased and loose paper currency had not been removed from the body.

At the degree of guilt hearing the court En banc concluded that a finding of murder in the first degree was justified both on a theory of wilful, deliberate, premeditated murder and under the felony-murder doctrine, the felony being attempted-robbery.

The entry of a plea of guilty to murder generally is sufficient in itself to sustain a conviction of murder in the second degree. Commonwealth v. Alston, Pa. 317 A.2d 229 (1974); Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967); Commonwealth ex rel. Bostic v. Cavell, 424 Pa. 573, 227 A.2d 662 (1967). The burden is upon the Commonwealth to establish those elements necessary to raise the crime to murder of the first degree. Commonwealth v. Markle, 394 Pa. 34, 37, 145 A.2d 544 (1958).

We have recently said in Commonwealth v. Alston, Supra:

'The factor that distinguishes first degree non-felony murder from murder in the second degree is the specific intent to kill. Commonwealth v. Mosley, 444 Pa. 134, 279 A.2d 174 (1971); Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970); Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (1970); Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970). A specific intent to kill may be found from the intentional use of a deadly weapon upon a vital part of the body. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972); Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970). The use of a deadly weapon directed at a vital organ of another human being justifies a factual presumption that the actor intended death unless the testimony contains additional evidence that would demonstrate a contrary intent.' Id., 317 A.2d at 231.

We do not find any evidence offered during the degree of guilt hearing that would suggest a contrary intent. We are therefore in agreement with the court En banc that there was sufficient evidence to establish the crime of murder of the first degree based upon a theory of a specific intent to kill.

We do however have some difficulty in accepting the court En banc's alternative theory in support of the first degree murder conviction. Conceding the existence of evidence that on prior occasions the appellant had discussed with one of his companions the possibility of robbing the deceased, there is no evidence to be found in this record suggesting that robbery was his intention on the night in question. The robbery theory is also weakened by the fact that no effort was made by the appellant to remove the money and a watch that the deceased had in his possession nor is there an indication of an occurrence that may explain why he was interrupted in carrying out a design to rob.

Nevertheless, in view of our conclusion that there is a basis for finding wilfull, deliberate and premediated murder and the court below did in fact make such a finding, this would justify an adjudication of murder in the first degree even though the alternative reason offered may not have been supported by the testimony. We therefore conclude that the appellant's challenge to the sufficiency of the evidence is without merit.

Appellant next alleges that his guilty plea was not knowingly or intelligently entered because it was induced by a coerced confession. The threshold determination is whether the confession in fact was unconstitutionally obtained.

Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968); Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967).

The confession was...