Com. v. Gaynor

• Decision Date: 24 September 1992
• Citation: 417 Pa.Super. 417,612 A.2d 1010
• Parties: COMMONWEALTH of Pennsylvania v. Michael GAYNOR, Appellant.
• Court: Pennsylvania Superior Court

Page 1010

612 A.2d 1010

417 Pa.Super. 417

COMMONWEALTH of Pennsylvania v. Michael GAYNOR, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 10, 1991.

Filed July 16, 1992.

Reargument Denied Sept. 24, 1992.

Thomas R. Quinn, Philadelphia, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, McEWEN and OLSZEWSKI, JJ.

CAVANAUGH, Judge:

Appellant, Michael Gaynor engaged in a gunfight with co-defendant Ike Johnson ¹ in which one child was killed and two were injured. The victims, along with other children, were in a small variety store when Gaynor and Johnson entered and began to shoot at each other. The children were in an unprotected area of the store between Gaynor at the front door and Johnson, who hid behind a video machine. The fatal bullet was fired by Johnson. One of the two wounds suffered by another child may have been caused by the single shot fired by Gaynor.

Gaynor was convicted of first degree murder, two counts of aggravated and simple assault, seven counts of recklessly endangering another person, and possession of an instrument of crime. He was sentenced to a term of life imprisonment and two terms of three to six years for the aggravated assaults, consecutive to the life sentence and concurrent with each other. No penalties were imposed for the other offenses.

Gaynor's primary argument on appeal is that the Commonwealth failed to present sufficient evidence to prove first degree murder. He contends that since a shot fired from his gun did not inflict the fatal wound and since he did not act in concert with Johnson, there was no showing of specific intent to kill. Gaynor maintains that since he and Johnson were adversaries, and not accomplices or co-conspirators, no theory of liability exists which would legally justify his conviction of murder in the first degree. After thorough review of the record and careful study of the briefs and applicable law, we find that this argument of Gaynor is meritorious, and we are constrained to order an arrest of judgment on the first degree murder conviction.

Where a challenge to the sufficiency of the evidence is posed, the evidence must be viewed in the light most favorable to the Commonwealth, and all proper inferences favorable to the Commonwealth must be drawn. If the jury could have reasonably determined that all elements of the crime have been established beyond a reasonable doubt, sufficient evidence exists to support the conviction. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988).

In this case, the issue is whether sufficient evidence of causation and specific intent to kill was introduced to sustain the murder conviction.

The elements of first degree murder are as follows:

A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

"Intentional killing." Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.

18 Pa.C.S.A. § 2502(a), (d).

A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.

18 Pa.C.S.A. § 2501(a).

In order to be guilty of first degree murder a person must possess a specific intent to kill. This specific intent is required for both a principal and an accomplice. Commonwealth v. Bachert, 499 Pa. 398, 406, 453 A.2d 931, 935 (1982). Cases in which a person is held responsible for the criminal acts of another require the existence of shared criminal intent, regardless of the grading of the homicide. See, Commonwealth v. Wilson, 449 Pa. 235, 238, 296 A.2d 719, 721 (1972), "All theories that are recognized under our law to hold one responsible for the criminal acts of another require the existence of a shared criminal intent." Accord, Commonwealth v. Cox, 466 Pa. 582, 586, 353 A.2d 844, 846 (1976) (Where the evidence failed to establish that appellant, as one of three attackers, fired the shots causing death, the Commonwealth was required to establish he was an accomplice or co-conspirator to support a conviction.); Commonwealth v. Bachert, supra, (Absent direct evidence of which of two defendants in a first degree murder trial shot the victim, defendant's words subsequent to the murder, established his culpability as an accomplice.); Commonwealth v. Coley, 350 Pa.Super. 549, 555, 504 A.2d 1286, 1289 (1986) (whether a defendant is the actual shooter is irrelevant where the circumstances of the killing allow the inference of shared criminal intent.)

All cases wherein shared criminal intent has been found have involved a finding that the actual slayer and non-slayer were accomplices or co-conspirators in the criminal offense charged. This court has found no case where a conviction of first degree murder has been upheld where there was no principal/accomplice or co-conspirator relationship between the defendants. Yet, in the instant case the Commonwealth did not proceed on a theory of vicarious liability. ² At trial and on appeal, it has been the Commonwealth's position that Gaynor is liable as a principal for his own actions in the chain of events which led to the death of the victim. The Commonwealth focuses, nearly exclusively, on the element of causation, i.e., Gaynor's acts as being a direct cause of death. It points to Gaynor's pursuit of Johnson into the store, assault upon him in resuming a quarrel, and drawing his weapon as direct causes of the shootings. We have no difficulty accepting the proposition that, under the standard enunciated in Commonwealth v. Rementer, 410 Pa.Super. 9, 598 A.2d 1300 (1991), appellant's conduct was sufficient to constitute a direct cause of death. Gaynor's exchange of gunfire in a small confined space in which he knew defenseless children were trapped was an operative cause of death, nor were his actions "so extraordinarily remote or attenuated," Rementer, 598 A.2d at 1305, that it would be unfair to ascribe criminal responsibility on the basis of causation.

The difficulty with the Commonwealth's approach is that it ignores the element of specific intent. Causation of the death of another human being, without proof of specific intent to kill, does not satisfy the elements of first degree murder. Murder of the first degree requires an intentional killing, i.e., a willful, deliberate and premeditated killing. 18 Pa.C.S.A. § 2502(a), (d). The establishment of causation alone does not satisfy all elements of the crime of first degree murder.

The Commonwealth cites 18 Pa.C.S.A. § 303(b) in support of its causation argument:

(b) Divergence between result designed or contemplated and actual result.--When intentionally or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the intent or the contemplation of the actor unless:

(1) the...