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COMMONWEALTH v. FOSTAR (01/24/74)

decided: January 24, 1974.

COMMONWEALTH
v.
FOSTAR, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas of Westmoreland County, April T., 1970, Nos. 406 and 407, in case of Commonwealth of Pennsylvania v. John Michael Fostar.

COUNSEL

Clarence F. McBride, with him Marker and McBride, for appellant.

John F. Dent, Assistant District Attorney, with him John N. Scales, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix.

Author: Nix

[ 455 Pa. Page 218]

During the early morning hours of February 28, 1970, the flame of life within the body of Ms. Harriet Susanna Thomas was extinguished after an assault by an intruder while she was watching television in the shelter of her home. The appellant, John Michael Fostar, was arrested and indicted for murder and burglary as a result of this incident and was subsequently convicted of both charges before a jury. Post-trial motions were filed, argued and dismissed. A sentence of imprisonment for life was imposed upon the murder indictment and the execution of sentence was suspended on the burglary bill. The appeal from the conviction on the murder charge was taken directly to this Court and the appeal from the burglary conviction was certified to this Court after first having been lodged in the

[ 455 Pa. Page 219]

Superior Court. The appeals have been consolidated and are now ripe for decision.

Appellant first contends that the evidence was not sufficient to sustain the guilty verdicts on either indictments. We have stated on many occasions that the test of the sufficiency of the evidence is whether accepting as true all the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. Commonwealth v. Paquette, 451 Pa. 250, 253, 301 A.2d 837 (1973); Commonwealth v. Oates, 448 Pa. 486, 489, 295 A.2d 337 (1972). In passing upon such a motion, all evidence actually received, is to be considered without concern for the validity of the evidentiary rulings. Commonwealth v. Crews, 429 Pa. 16, 19, 239 A.2d 350 (1968); Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965).

The testimony offered by the prosecution established that the deceased, a fifty-two year old married woman, was staying in her residence on the night in question with her six year old son, Mark, her daughter, Ruth, and her daughter-in-law, Gail. That evening she had decided to sleep in the living room to allow her to be near her young son who was ill at the time and sleeping on a cot in the dining room. The daughter and the daughter-in-law of the deceased testified that they were sleeping on the second floor of the home and that in the vicinity of 3 A.M. in the morning they were awakened by the screams of the deceased. Upon going downstairs, they both observed the appellant struggling with the deceased in the living room. The daughter solicited the aid of a neighbor who was then the chief of police. When he arrived he found the decedent on the living room floor unconscious with evident bruises. The deceased was rushed to the hospital where she was pronounced dead on arrival.

[ 455 Pa. Page 220]

The defendant was observed leaving by the rear kitchen door by the daughter as she left by the front door to seek aid. An inspection of this kitchen door revealed a loose door jam which suggested that this was the means by which the intruder gained entry. A search of the area uncovered the defendant hiding in a building used as a "doghouse" to the rear of the Thomas home. Upon apprehension he stated to police officers, "I don't know why I did it. How is she?"*fn1

An autopsy showed the victim had been subjected to a merciless beating and had sustained over twenty wounds about the face and trunk of the body. The cause of death was identified as a stab wound of the chest which caused a cardiac tamponade. The pathologist testified that the screwdriver found on the scene and identified as ...


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