Appeal, No. 226, Jan. T., 1949, from judgment and sentence of Court of Oyer and Terminer of Berks County, Dec. Sessions, 1947, No. 151, in case of Commonwealth v. Frank S. Linkowski. Judgment and sentence affirmed.
Emanuel Weiss, for appellant.
John P. Wanner, First Assistant District Attorney, with him John E. Ruth, District Attorney, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE PATTERSON
Frank S. Linkowski, appellant, was indicted and tried for the murder of Frank Zabczyk. The jury returned a verdict of voluntary manslaughter. Appellant moved in arrest of judgment and for a new trial. These motions were refused, sentence imposed, and this appeal followed.
Between midnight and one o'clock on the morning of September 15, 1947, appellant and Zabczyk engaged in a fight in the social room of a private club, known as the Polish Falcons, located at Bingaman and Spring Garden Streets, in the City of Reading. They were separated by others present and Zabczyk was put out off the club-room, but he returned shortly and appellant invited him to "go outside and straighten this out now", whereupon the two men left the club to settle their differences. Fifteen minutes later Zabczyk reappeared in the club-room, with skinned knuckles, stating that he and appellant had settled the matter and that he had asked appellant "to come in and have a beer and forget about it", but appellant said he was going home. At about 2:50 a.m., Zabczyk was shot in the back as he stood at the bar of the club-room, with his back towards an open window which faces on Spring Garden Street. He was removed to a hospital where he died within a half-hour of the shooting. Appellant was taken into custody about an hour after the shooting, at his home, located four and one-half city blocks from the club, where he was found asleep in his bedroom on the second floor. Appellant's face was badly bruised as a result of his fight with Zabczyk and in a closet of his bedroom were found a supply of cartridges and a 1917 Enfield rifle from which, according to the testimony of the Commonwealth's ballistics expert, the fatal shot was fired.
None of the Commonwealth's witnesses saw appellant from the time he left the club to settle matters with deceased until he was apprehended and taken into custody
at his home. The theory of the Commonwealth was that following the fight with Zabczyk appellant went to his home for his rifle, returned to the club, and fired the fatal shot through the open window into Zabczyk's back. Appellant's defense was an alibi -- that he was at his home and in bed at the time of the shooting. Both his mother and sister testified that he had not left the house after coming home, drunk and badly beaten, between 1:00 and 1:30 a.m. Appellant testified that he remembered engaging in a fight, which was continued on the outside, but did not recall the person involved, the reason for the fight, its duration, or anything that occurred from the time of the fight until he awakened in his cell the following morning, and that, remembering the fight, he thought he was in custody because of it.
Appellant contends (1) that the evidence of facts and circumstances relied on by the Commonwealth to establish his guilt was not of the character required to sustain a conviction based on circumstantial evidence; (2) that the trial judge erred in permitting the Commonwealth to plead surprise and cross-examine the witnesses Erwetowski, bartender at the Polish Falcons, and Kusnir, a patron, as to previous inconsistent statements, when they denied knowledge of facts relating to the scuffle between appellant and deceased which occurred inside the club-room; and (3) that a new trial should be awarded because it has been discovered since the trial that the Commonwealth's ballistics expert "tampered" with one of the test cartridges fired by him in making the tests upon which he based his opinion that the fatal bullet was fired from the rifle found in appellant's bedroom closet.
The court below did not err in concluding that the evidence presented a case for the jury. The Commonwealth established a motive for the killing of Zabczyk by appellant, and it is not disputed that appellant had ...