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decided: March 23, 1978.


No. 24 May Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County, at No. 943 August Sessions, 1974.


Griest, Managan & Himes, Peter J. Mangan, York, for appellant.

Donald L. Reihart, Dist. Atty., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., took no part in the consideration or decision of this case. Manderino, J., files a dissenting opinion.

Author: O'brien

[ 478 Pa. Page 24]


Appellant, Jose Sanabria, was tried by a judge sitting with a jury and was adjudged guilty of murder of the

[ 478 Pa. Page 25]

    second degree for his participation in the murder of Elizabeth Bilger. Post-verdict motions were denied. Appellant was sentenced to life imprisonment at a state correctional institution. This appeal followed.

Appellant first argues that the evidence was insufficient to sustain a conviction of murder of the second degree. We do not agree.

In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975), we stated the standard for appellate review:

"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975); Commonwealth v. Boyd, 461 Pa. 17, 24, 334 A.2d 610, 613 (1975); Commonwealth v. Murray, 460 Pa. 605, 608, 334 A.2d 255, 257 (1975). Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Robson, supra; Commonwealth v. Murray, supra; Commonwealth v. Smith, 457 Pa. 638, 326 A.2d 60, 61 (1974); Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). The fact-finder is free to believe all, part, or none of the evidence. Commonwealth v. Robson, supra; Commonwealth v. Smith, supra."

Viewing the evidence in the light of the above standard, the facts of the instant case are as follows:

On the night of July 18, or the early morning of July 19, 1974, appellant, Michael Myers and Fred McCleary planned a robbery of an "old lady's home." At approximately 2:00 a.m. on July 19, 1974, appellant drove Fred McCleary and Michael Myers to the home of the decedent, Elizabeth Bilger. Appellant drove his car into the driveway of the Bilger home. Myers got out of appellant's car carrying the car's tire iron which was in the back seat. Myers went to

[ 478 Pa. Page 26]

    the back of the home. Minutes later the lights in the house went on and voices were heard. Appellant and McCleary then drove away. After driving around the area for a time, appellant drove to the general area of the victim's home and picked up Myers, who was walking down the road. On the way back to appellant's residence, Myers offered appellant a check for gas. Appellant refused the check, but McCleary took the check and then tore it up and threw it out of the car.

At 10:30 a.m. on July 19, the police found the decedent's body in the bedroom of her home. The cause of death was a fractured skull. Numerous gashes and contusions were also noted over the body. Police investigation revealed one of the two rear doors of decedent's home was open.

On the afternoon of July 19, appellant and his girlfriend, Cindy Fitzkee, left Pennsylvania for Florida. Neither appellant nor his girlfriend informed friends or family of their trip to Florida. The day after their arrival in Florida, Ms. Fitzkee called her family in Pennsylvania. At the request of appellant, Ms. Fitzkee misinformed her family as to their location in Florida. Ms. Fitzkee was informed by her family of the homicide and that a tire iron was suspected of being the murder weapon. Ms. Fitzkee testified that she conveyed this information to appellant. Upon inspecting the tire iron in the trunk of his car, appellant found grey hair on the tire iron.

A review of the above evidence in the light most favorable to the Commonwealth and all logical inferences therefrom, shows there is sufficient evidence to sustain appellant's conviction.

Appellant next argues that the suppression court erred in refusing to suppress his confession. The basis of appellant's contention is that because of his inability to comprehend the English language, his purported waiver of his Miranda rights was involuntary, unknowing and unintelligent. We do not agree.

[ 478 Pa. Page 27]

In Commonwealth v. Riggins, 451 Pa. 519, 522, 304 A.2d 473, 474 (1973), we stated our scope of review in determining the correctness of a suppression court's order:

"'Our task on review, . . . [of a suppression hearing] is to consider only "the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted." Culombe v. Connecticut, 367 U.S. [568] supra at 604, 81 S.Ct. [1860] at 1880, 6 L.Ed.2d 1037.' Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 149-50, 239 A.2d 426, 430 (1968)."

See also Commonwealth v. Kichline, 468 Pa. 264, 280, 361 A.2d 282, 290 (1976).

Interpreting the facts in the instant case in the above light, we must then determine whether the Commonwealth has sustained its burden of proof by a preponderance of evidence that appellant's waiver of his constitutional rights was knowing, voluntary and intelligent. ...

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