Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1971, Nos. 1039 and 1040, in case of Commonwealth of Pennsylvania v. Monserrate Zapata.
David Weinstein, with him Weinstein & Bobrin, for appellant.
Benjamin H. Levintow, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.
Appellant Monserrate Zapata was convicted of two charges of voluntary manslaughter and sentenced to two consecutive terms of six to twelve years imprisonment. After the denial of post-trial motions, Zapata filed this appeal alleging several trial errors. None of appellant's contentions merit relief and we accordingly affirm the judgments of sentence.
Appellant first contends that he was entitled to acquittal on the ground of self-defense and in the alternative that the jury's failure to find that appellant acted in self-defense was against the weight of the evidence.
The record establishes that: Shortly after midnight on November 7, 1970, a fight erupted at the Flamboyant Bar in Philadelphia. After the fight was stopped inside the bar, it moved out onto the street. Santos Soto, and several others, went outside to watch the fight. When Carmen Encarnacion, who worked at the bar and was Soto's wife, went out to see what was
happening, she found Soto lying on the ground bleeding and unconscious. Then appellant informed Carmen that he was responsible for her husband's injuries. The police arrived and took Soto to a nearby hospital accompanied by his wife. Carmen had been informed by a bystander that appellant had left to go to Martin's Bar, a few blocks away. After Carmen left the hospital, she decided to go to Martin's Bar to find out why Zapata had beat up her husband whom she believed to be an innocent bystander. Carmen drove to Martin's Bar accompanied by her two brothers, Antonio Ramos and Carlos Lopez, and a friend, Gilberto Colon.
Carmen entered the bar before her brothers and the friend. She saw Zapata sitting at the bar with a lady friend. She motioned to him with her index finger to come over to where she was standing. Zapata approached with his hands in his pockets.
At this point, there are substantial conflicts between appellant's version and the testimony of all other witnesses including those who testified in his behalf. Carmen testified for the Commonwealth that she began to ask Zapata why he had beaten her husband. At this point, her two brothers entered the bar and stood behind her. Appellant suddenly took a step backward and shot Carlos who fell to the floor. Antonio was then shot as he tried to run out the door. He made it outside and collapsed on the sidewalk. Both died shortly thereafter.
Appellant testified as follows: He was sitting at the bar when Carmen walked in and beckoned him toward her. She was carrying an open pocketbook in one hand and a gun in the other. Then the two brothers entered the bar, one of whom was carrying a gun. After appellant stood up to approach Carmen, he was handed a gun by ...