concurring and dissenting.
I remain convinced that the improper charge to the jury cannot be dismissed as harmless error and so dissent from Part IV of the opinion of the Court. Because the jury clearly struggled with the improper presumption and was repeatedly misin-structed by the trial judge, I cannot agree that “it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Yates v. Evatt, — U.S. -, 111 S.Ct. 1884, 1892, 114 L.Ed.2d 432 (1991) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828,17 L.Ed.2d 705 (1967)). I concur in the majority’s conclusion that the charge was erroneous as a matter of law; I would not reach the venue and sentencing issues.
I.
The majority asserts that the evidence in support of the first degree murder verdict was overwhelming and rendered the unconstitutional presumption harmless error. It is unwise, however, to infer that the jury made a finding of specific intent from the jury’s finding of sanity combined with its use of the improper instruction. By positing both that the jury could not have found Rock sane and free from diminished capacity and that the jury employed the improper presumption to find that Rock did not intend to kill Brookens and Cutchall, the majority effectively relieves the Commonwealth of its burden of proving specific intent, an element required for first degree murder regardless of a threshold finding of sanity. Although I would agree with the majority that the jury may have found as it posits, I am simply unconvinced beyond a reasonable doubt that the jury did so find.
The circumstantial evidence of Rock’s specific intent to murder Brookens and Cutchall was less than overwhelming. To prove first degree murder, the Commonwealth must prove “an intentional killing,” defined as “[kjilling 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(d) (Purdon’s 1983). Although I concede that the evidence would have supported an inference of specific intent, I dispute the majority’s conclusion that the jury was left with no rational alternative on that question.
The defense expert witness, Dr. Emanuel Tanay, testified that he believed Rock’s *1259acts of setting fire to his home and murdering the two victims did not constitute behavior “acceptable” to Rock, and was “contrary to his past history and contrary to his wishes.” Dr. Tanay further opined that Rock acted “as if he was responding to some delusions ... re-enacting something.” Tr. at 505. There was ample evidence to support the factual components of Tanay’s theory. Rock had demonstrated great interest and pride in his home, purchasing items for landscaping and paying his mortgage just hours before setting his home on fire. The record shows an absence of any evidence that Rock had previous brushes with the law or that he harbored any motive beyond his general frustration with his life. Indeed, there was no evidence that Rock harbored a particular malice toward these specific victims.
Rock testified that he unsuccessfully ransacked his home and shed looking for a magazine pouch, then doused the structures with gasoline and set them on fire in a state of agitation and confusion. Tr. 421-22. Rock further testified that after hearing shots and explosions that frightened him,1 he ran to the rear of his burning home and began shooting “at anything that moved.” Tr. 427-29. He expressly denied any knowledge of shooting, or intent to shoot, at people. Tr. 429.
It is noteworthy that the District Attorney conceded in his summation that the evidence of intent was circumstantial; he argued that the jury should infer specific intent from Rock’s actions. Tr. 667. Certainly the jury could have inferred specific intent; I am concerned only that the jury may have relied upon the unconstitutional presumption.
II.
Much of the majority’s harmless error analysis relies upon its reading of the presumption. Thus, the majority interprets the word “intentional” to modify both the “use of a deadly weapon” and “against a vital part of the body” predicates. This reading is essential to the majority’s harmless error analysis, because if “intentional” relates solely to the predicate “use of a deadly weapon,” then the presumption may have been applied without the predicate finding that Rock possessed specific intent to kill the victims. This latter understanding would be consistent with Rock’s testimony that he believed he was shooting at moving objects but lacked any intention to shoot at people. If this is so, the jury may have applied the improper presumption in arriving at its conclusion that Rock committed a “willful, deliberate and premeditated murder.”
After some deliberation, the jury posed questions concerning insanity and diminished capacity and asked, significantly, “Explain intent in regards to the hitting of a vital organ.” The question itself reveals that the jury recalled and puzzled over the precise language of the improper presumption. More importantly, in answer to this question the trial court reiterated the improper presumption but on this occasion failed to include any qualifying language. In fact, the trial court made matters worse by adding another presumption: “Every person is presumed to intend the natural and probabl[e] consequences of his act_” Armed with these improper instructions, the jury resumed deliberations and returned a guilty verdict only ninety minutes later. This reiteration served to reinforce an unconstitutional presumption that was not countermanded by curative instructions or the weight of the evidence. See Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946).
The verdicts of guilty for the attempted murder counts do not assuage my concern in this regard. The jury was invited to deliberate on the attempted murder charges after the murder charges by virtue of the sequence of the trial judge’s charge. Moreover, the trial judge incorporated by reference the improper presumption on the murder counts into the instructions on the attempted murder counts. The majority’s reasoning, while intellectually persuasive, *1260does not satisfy my concern that the jury may have followed the sequence of the trial judge’s instructions and simply determined that failure to kill the attempted murder victims warranted conviction on those counts.
For these reasons, I respectfully dissent from Part IV of the opinion of the Court. Circuit Judge COWEN agrees with this concurring and dissenting opinion.
. There was testimony to support the theory that some of those explosions would have been consistent with the burning of ammunition left inside the burning structures.