Robert O. D'Ambrosio, West Chester, for appellant.
Timothy H. Knauer, West Chester, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., concurs in the result. Manderino, J., filed a concurring opinion in which Roberts, J., joined.
On July 19, 1973, appellant Sylvester Thomas was convicted by a jury in the Court of Common Pleas, Chester County of murder of the first degree in the shooting death of his wife. Following the denial of post-trial motions by the court en banc, a sentence of life imprisonment was imposed. This direct appeal followed.
First, appellant raises the issue of the sufficiency of the evidence to sustain his conviction. Appellant does not deny the shooting nor does he claim that the killing was excusable or justifiable. Rather, appellant asserts that the evidence dictated a finding of voluntary manslaughter. We disagree for the reasons set forth below.
It is well settled that in passing upon the sufficiency of the evidence to sustain a criminal conviction, the evidence must be read in the light most favorable to the Commonwealth. Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Pride, 450 Pa. 557, 559, 301 A.2d 582, 583 (1973). Furthermore, the test of the sufficiency of the evidence is whether, accepting as true all the evidence and all reasonable inferences therefrom, 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 or crimes of which he has been convicted. Commonwealth v. Stanley, 453 Pa. 467, 469, 309 A.2d 408, 410 (1973); Commonwealth v. Oates, 448 Pa. 486, 489, 295 A.2d 337, 338 (1972).
The salient facts adduced at trial indicate that at approximately 8:00 A.M. on March 10, 1973, the date of the incident, appellant visited his friend Samuel Teal. Mr. Teal testified that they each drank a "shot of whiskey" and appellant explained that due to a strike against his employer, he had been out all night picketing. During the conversation the witness said to Thomas, "When you go home your old lady is going to get you. She won't like you laying out at night." Appellant then responded, "She mess with me and my old lady will get this" and pulled from his pocket the .22 calibre gun later identified as the murder weapon.*fn1
The Commonwealth also presented testimony of several relatives of appellant, including his daughter, who
were sitting in the living room at the time of the shooting. They testified that appellant entered the home at approximately 1:30 P.M., greeted them all, picked up his two-month old grandson from the floor and carried the infant upstairs to the bedroom where Mrs. Thomas was dressing. The witnesses stated that almost immediately they heard loud voices and shouting emanating from the bedroom, but could not ascertain the actual words. After several minutes passed, gun ...