This is аn appeal from an order granting defendant-appellee’s motion to quash a murder charge, bill of information no. 3251. The motion to quash was granted because there was nоthing in the evidence to indicate an intentional killing or that malice was present or could be inferred.
The Commonwealth requests that we reverse the order and remand the case for trial, contending that evidence presented at the preliminary hearing established the elements of premeditation and malice. We find that the Commonwealth has failеd to prove its argument; consequently, we affirm.
Appellee was charged with murder, voluntary manslaughter, involuntary manslaughter, and possessing an instrument of crime — a knife. After a preliminary hearing on March 23, 1988, the court found sufficient evidence to establish a prima facie case of murder and possession of an instrument of crime. On March 6, 1989, a hearing was held before trial court Judge McKee on defendant-appellee’s motion to quash the murder count. Judge McKee quashed count 1 charging murder. Subsequently, upon the Commonwealth’s motion, Judge McKee vacated his order and transferred the matter to Judge Manfredi, sitting as homicide calendar judge, pursuant to Philadelphia Criminal Rule *149 605. Judge Manfredi’s order, once again quashing the murder charge, is thе subject of this appeal.
The evidence presented at the preliminary hearing follows. It was stipulated that the decedent was Raymond Adams; that the date of his death was September 20, 1987; that previously Adams was a life in being; and that the cause of death was a stab wound to the abdomen. (N.T. 3/23/88 at 3.) The only evidence presented by the Commonwealth was a stаtement made by Robert Austin to the police. In pertinent part, it is as follows:
Q. Detective Alexander, will you go on at this time and read the statement given to you by Mr. Austin at that time?
A. Okay. On pagе one of the interview, the first question was: “Question: Robert, tell me in your own words what happened at approximately nine p.m. on 9-,9-87 that caused you to stab Raymond Adams outside the bar at Broad and Glenwood Streets?
Answer: I was in the bar approximately forty-five minutes before this happened.
From the time I walked in Sandy started to argue with me. I couldn’t understand it, because I had been out with her and the guy I stabbed. I don’t know his name, the night before.
We had been drinking together, and we went to a party together.
After the party, we all went our own way.
Friday night before we left the party I had asked her for some money, and she told me that she got paid Saturday, and for me to stop by the bar. That’s why I was at the bar Saturday night.
While she was arguing with me, the owner of the bar came over and told hеr to leave. I got up and went to the bathroom.
When I came out, Sandy was still behind the bar getting her stuff together.
*150 About five minutes went by, and me, Raymond, Sandy, and two of Sandy’s cousins, a male and a fеmale, left the bar together.
When we went outside, I tried to talk to Sandy to find out why she was mad at me. I started to walk towards Sandy, but this guy Raymond was between us. He had this look on his face sort of a threatening look.
I told him to stay out of it, because he had nothing to do with it.
He had something in his hand, but I could not see what it was. I went past him toward Sandy, and then Raymond hit me in the head with a pipе, or stick or something.
I stumbled and turned around. He came at me, and as he was swinging whatever he had, as he was swinging what it was there he had, I put up my left hand and he hit me. As he was doing this, I pulled out my knife. I had it in my hand, and I swung the knife at him swinging (indicating an upward motion from the waist). And if I thought about it twice, I was swinging again, but I changed my mind, because he was on the defense now. So I just turned around and left.
When I walked away, he was still standing.
Then Sandy said, 'T know where you live, and I know where your sister lives.”
I looked back, and when I did, Raymond was laying on the ground.
******
Question: Where did you get the knife?
Answer: I had it with me. I carry it on Friday and Saturday nights because it’s bad out on the streets.
******
Question: How many times did Raymond hit you?
Answer: All together, about three or four times____”
(N.T. 3/23/88 at 7-11.)
At a preliminary hеaring the Commonwealth bears the burden of establishing a
prima facie
case that a crime
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has been committed and that the accused is probably the one who committed it.
Commonwealth v. Wojdak,
Murder is defined as follows:
§ 2502. Murder
(a) Murder of the first degree. — A criminal homicide constitutes murder of the first degree when it is committed by an intentiоnal killing.
(b) Murder of the second degree. — A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree. — All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degreе.
(d) Definitions. — As used in this section the following words and phrases shall have the meaning given to them in this subsection:
* # sjc # * *
“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.
In order to establish murder in the first degree, the Commonwealth must prove that Austin specifically in
*152
tended to kill, which, in turn is proved by evidence of premeditation and deliberatiоn.
Commonwealth v. Garcia,
The Commonwealth’s argument centers оn the use of the knife itself to cause the death; however, the physical act of
*153
using the knife on a vital area is not the proper focus. The proper focus for determining the mental component of the crime is how appellant intended to use the knife or what caused the knife to come into contact with a vital area of a human bоdy. A specific intent to kill and malice are properly implied when a deadly weapon is
directed
to a vital part of the body.
Commonwealth v. Roberts,
In the case before the bar, the preliminary hearing judge had to determine from the evidence what Austin’s intentions were up to and including the moment of the knife’s contact with victim. There is no evidence that the knife was directed at a vital part of the victim’s body. Austin admitted to swinging the knife and the Commonwealth presented no other evidencе concerning this issue. The judge found that Austin did not intend to direct the knife into victim’s body. We agree.
Commonwealth does not contend that Austin’s actions constitute second-degree murder. We must, thеrefore, analyze whether it is more likely than not that Austin’s actions constitute third-degree murder. Third-degree murder does not require a specific intent to kill although it does require malicе.
Commonwealth v. Wanamaker,
Malice may be inferred from the attending circumstances. Id. Previously in this opinion, we determined that malice could not be inferred from Austin’s use of a knife to stab victim. That determination holds true for third-degree murder as well as first-degree murder.
The order quashing bill of information no. 3251 is affirmed. This case is remanded to the Court of Common Pleas of Philadelphia County. Jurisdiction relinquished.
Notes
. Commonwealth cites the following cases:
Commonwealth v. McAndrews,494 Pa. 157 ,430 A.2d 1165 (1981); Commonwealth v. O’Searo,466 Pa. 224 ,352 A.2d 30 (1976); Commonwealth v. Ingram,440 Pa. 239 ,270 A.2d 190 (1970); Commonwealth v. Frederick,327 Pa.Super. 199 ,475 A.2d 754 (1984); Commonwealth v. Baylor,323 Pa.Super. 9 ,469 A.2d 1134 (1983); and Commonwealth v. Clark,270 Pa.Super. 441 ,411 A.2d 800 (1979) (allocatur denied), cert denied,446 U.S. 944 ,100 S.Ct. 2170 ,64 L.Ed.2d 799 (1980).