Com. v. White

• Decision Date: 21 June 1974
• Citation: 323 A.2d 757,229 Pa.Super. 280
• Parties: COMMONWEALTH of Pennsylvania v. Thomas WHITE, Appellant.
• Court: Pennsylvania Superior Court

Page 757

323 A.2d 757

229 Pa.Super. 280

COMMONWEALTH of Pennsylvania v. Thomas WHITE, Appellant.

Superior Court of Pennsylvania.

June 21, 1974.

Petition for Allowance of Appeal Denied Sept. 16, 1974.

VAN der VOORT, Judge.

Appellant Thomas White was indicted and tried at February Term 1972, No. 406--408, Court of Common Pleas of Philadelphia County, for attempt with intent to kill, carrying firearms on a public street and playfully pointing and discharging a deadly weapon. The charges arose out of an incident which occurred on December 25, 1971, shortly after midnight, when during what the trial judge described as a Dodge City-style neighborhood quarrel, appellant fired a handgun from the front steps of his mother's house in the direction of several neighbors. At a trial on May 24, 1972 before the Honorable Joseph L. McGlynn, Jr., sitting without a jury, three witnesses testified that they saw appellant fire the gun. Two of these witnesses specifically testified that they saw appellant 'point' the gun. The trial judge found appellant guilty of the charges and sentenced him to not less than one year nor more than two years. The issue presented to this Court is whether the evidence presented by the Commonwealth was sufficient to convict appellant of attempt with intent to kill; specifically, whether the Commonwealth had demonstrated appellant's Intent to commit murder. ¹

In Commonwealth v. Harris, 194 Pa.Super. 600, 169 A.2d 576 (1961), we affirmed per curiam on the opinion of the lower court a conviction under 18 P.S. § 4711 for shooting with intent to murder. The lower court had found the requisite intent to murder from the fact that the defendant had fired four shots from a gun, directly down a narrow alley at a police car in which a police officer was sitting. (All four shots missed the police officer). In Commonwealth v. Del Marmol et al., 206 Pa.Super. 512, 516, 214 A.2d 264, 266 (1965) Allocatur denied, a burglary case, this Court stated that 'Felonious intent . . . may be inferred from actions as well as words provided those actions bear a reasonable relation to the commission of the felony.' See also Commonwealth v. Reynolds, 208 Pa.Super. 366, 222 A.2d 474 (1966). In the case before this Court, appellant was seen to 'point' and fire a deadly weapon in the direction of several neighbors. Testimony indicated that the bullet narrowly missed striking the head of one of those neighbors. Notwithstanding this, appellant would have us find that the evidence was insufficient to permit a determination that appellant had possessed the intent to commit murder. This Court cannot so find. Unlike Commonwealth v. Ellis, 349 Pa. 402, 37 A.2d 504 (1944), an attempted rape case where the circumstances indicated no intention on the part of the defendant to commit any felonious act, and unlike Commonwealth v. Young, 446 Pa. 122, 285 A.2d 499 (1971) where the evidence merely indicated that Random shots had been fired (not in the direction of any person), the fact that appellant here actually 'pointed' the gun and narrowly missed hitting someone was sufficient to permit the trier of fact to infer that appellant possessed the requisite intent to commit murder.

As the Supreme Court of New Jersey aptly put it in 1793:

'The designs of the heart can rarely be proved in a direct manner by the testimony of witnesses. When a man designs to perpetrate a scheme of wickedness, he seldom communicates his intention unless to an accomplice; hence the intent must in most cases be collected from the circumstances. These may sometimes prove deceptive; but when, without any forced construction, they speak the intention in a language clear and intelligible, they may be relied on as the best evidence which the nature of the case will admit of.

'It is impossible to lay down any general rule, or to declare from what circumstances particular intentions are to be inferred. No two cases are exactly similar . . ..' ²

Judgment affirmed.

PRICE, J., files a dissenting opinion in which HOFFMAN, J., joins.

PRICE, Judge (dissenting).

I respectfully dissent from the majority opinion. Reviewing the evidence presented in the light most favorable to the Commonwealth, Commonwealth v. Young, 446 Pa. 122, 285 A.2d 499 (1971), that evidence is simply insufficient to establish the requisite intent to convict this appellant of the charge of attempt with intent to kill. ¹ In my view the record...