# Commonwealth v. O'SEARO > Supreme Court of Pennsylvania · January 29, 1976 · 466 Pa. 224 URL: https://www.frixlaw.com/law-library/cases/9756953 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Roy J. O’SEARO, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** January 29, 1976 - **Citations:** 466 Pa. 224; 352 A.2d 30; 1976 Pa. LEXIS 465 - **Precedential status:** Published - **Opinion:** Dissent by Manderino - **Judges:** Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino - **Cited by:** 165 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756953 ## How later opinions describe it (automated extraction) - rejecting challenge to instruction that the jury could infer malice or intent to kill from the use of a deadly weapon upon a vital part of the body and holding that *481 the inference arising from the instruction is permissive, allowing the jury to either accept or reject it b… - stating the deadly weapon presumption is a presumption of fact “founded on human experience,” since “[o]ne does not normally use a deadly weapon on a vital part of another’s body unless he intends to kill.” (citation omitted) - holding that issue of witness credibility is within the knowledge of the average layperson and must be determined [J-17-2020] - 23 solely by the factfinder - holding that the issue of witness credibility is within the knowledge of the average layperson and must be determined solely by the finder of fact ## Opinion text MANDERINO, Justice (dissenting). I dissent from the majority’s statement that the trial court correctly instructed the jury that appellant’s act of pointing a gun at a vital part of another’s body is, in itself, enough for the jury to infer that the killing was willful, deliberate, and premeditated. See Commonwealth v. Kittreles, Pa., 350 A.2d 842 (1976) (Manderino dissenting joined by Roberts, J.); Commonwealth v. Thomas, Pa., 350 A.2d 847 (1976) (Manderino dissenting joined by Roberts, J.). The majority states that evidence of the use of a deadly weapon on a vital part of the body is sufficient to support an inference of the intent to kill — so far so good. This first inference is reasonable and was accepted at common law. The majority then proceeds, however, without explanation and without any basis in the history of the law of murder in Pennsylvania or elsewhere, to hold that from the first inference — that one had the intent to kill — a second inference is permissible^ — that the defendant’s act was willful, deliberate, and premeditated. In effect, the majority says that proof of the use of a deadly weapon upon a vital part of the body authorizes the conclusion that the defendant had a specific intent to kill, and that that conclusion warrants a second inferential leap to the conclusion that the killing was willful, deliberate, and premeditated. That is not, and has not been, a proper analysis of the law of murder in this or any other jurisdiction. *242 One who possesses the intent to kill may or may not have formed that intent to kill in a willful, deliberate, and premeditated murder. If the intent to kill was willful, deliberate, and premeditated, the killing is murder in the first degree. If, however, the defendant’s intent to kill was not formulated in a willful, deliberate, and premeditated manner, the killing is not murder in the first degree, but murder in the second degree. This has always been the law until today. The distinction is vital and is the law in all American jurisdictions which recognize degrees of murder. “To be guilty of [murder in the first degree] the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. [A defendant] can generally be held guilty of second degree murder ... on the theory that, though he could not premeditate and deliberate, he could and did at least have an intent to kill (as shown, in most cases, by his intentional use of a deadly weapon upon the victim). Although the law may recognize a presumption, from the fact that the defendant killed with a deadly weapon, that the crime which he commits is murder, there is no presumption that the murder is first degree murder; for the higher degree there must be some affirmative evidence to support a finding that the defendant in fact did premeditate and deliberate.” (Emphasis added.) LaFave & Scott, Criminal Law, pp, 563-564 (1972). I have found no authority, treatise, hornbook, encyclopedia, or law review article disagreeing with the above statement of the law. In every one of the cases cited by the majority, there was evidence in addition to the use of a weapon on a vi *243 tal part of the body from which the factfinder could reasonably determine that the defendant not only intended to kill, but had time for willful, deliberate, and premeditated reflection — even though for a short period. Those cases were properly decided. As explained by LaFave and Scott: “On the basis of events before and at the time of the killing, the trier of fact will sometimes be entitled to infer that the defendant actually premeditated and deliberated his intentional killing. Three categories of evidence are important for this purpose: (1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.” (Footnote omitted; emphasis in original.) Id. at 564. I admit that certain statements in some prior Pennsylvania cases seem to indicate that a killing accompanied by an intent to kill equals murder in the first degree. There is no basis for such statements in the law of murder, and such language should be explicitly repudiated. In Pennsylvania, murder in the first degree is a statutory offense. The first part of the statute in effect at the time of the killing for which appellant here was convicted, states that murder in the first degree shall include “[a] 11 murder which shall be perpetrated by means of poison, or lying in wait, or by any other kind of willful, deliberate and premeditated killing. . . .” (Emphasis added.) *244 Act of June 24, 1989, P.L. 872, § 701; 1959 Dec. 1, P.L. 1621, § 1 (18 P.S:. 4701). See also Act of Dec. 6, 1972, P.L. 1482, No. 834, § 1 (18 CPSA § 2501 and § 2502(a)). We have often stated that the use of a deadly weapon on a vital part of the body is evidence which supports an inference of malice, and thus sustains a conviction of murder in the second degree. Commonwealth v. Roots, 452 Pa. 535 , 306 A.2d 873 (1973), Commonwealth v. Robinson, 452 Pa. 316 , 305 A.2d 354 (1973), Commonwealth v. Palmer, 448 Pa. 282 , 292 A.2d 921 (1972), and Commonwealth v. Myers, 439 Pa. 381 , 266 A.2d 756 (1970). We have never held, however, that such evidence alone supports both an inference of malice and an inference that the killing was willful, deliberate, and premeditated. We have upheld convictions of murder in the first degree when the evidence establishing not only the use of a weapon on a vital part of the body, but also other facts from which the factfinder could reasonably conclude that the killing was willful, deliberate, and premeditated. In these cases, the use of a weapon on a vital part of the body was sufficient to establish a specific intent to kill but other evidence was present to establish that the specific intent to kill was also willful, deliberate, and premeditated. Commonwealth v. Petrakovich, 459 Pa. 510 , 329 A.2d 844, 848 (1974); 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). ROBERTS, J., joins in this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756953. Public record. Not legal advice.