No. 43 May Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, at No. 2148 Criminal Division 1975.
Frederic G. Antoun, Jr., Asst. Public Defender, for appellant.
LeRoy S. Zimmerman, Dist. Atty., Thomas J. Williams, III, Reid H. Weingarten, Deputy Dist. Attys., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Appellant Joseph Sero was tried before a judge and jury and convicted of murder of the first degree for the shooting death of his wife. Post-verdict motions were denied, and on September 3, 1976, appellant was sentenced to life imprisonment. This direct appeal followed. We now affirm the judgment of sentence.
Although appellant does not challenge the sufficiency of the evidence to sustain the conviction of murder of the first degree, we nevertheless must review the record to determine whether the evidence is sufficient to establish all the elements of that offense. 19 P.S. § 1187 (1964). Viewing the evidence in the light most favorable to the prosecution, the evidence is sufficient if, accepting as true all the evidence and all reasonable inferences upon which, if believed, the jury could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that appellant is guilty of murder of the first degree. See, e. g., Commonwealth v. Motley, 472 Pa. 421, 372 A.2d 764 (197-); Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973). Reviewing the record in this light, we are persuaded that the jury's finding of the necessary elements of the offense is supported by sufficient evidence.
The prosecution's evidence established that on the evening of August 18, 1975, appellant and his wife had dinner together at a Harrisburg restaurant. The two left together at approximately 10:30 p. m. At 10:50 p. m., a nurse at Harrisburg Hospital observed appellant drive his car through a red light in front of the hospital and enter the front entrance of the hospital at a high rate of speed.
Appellant's wife was in the front seat of the car, bleeding profusely from the mouth. Appellant shouted that someone shot his wife and asked directions to the emergency room.
Upon arriving at the emergency room entrance, appellant encountered two Harrisburg policemen in their patrol car about to go off duty. Both testified that appellant went over to the patrol car and stated that it was appellant that shot his wife. One officer testified that appellant's words were, "Oh my God, I shot my wife, help me," the other testified that appellant stated, "Oh my God, I just shot my wife." A third person, an off-duty police officer working as a hospital security guard, also testified that he heard appellant say "God, help me, I shot my wife. . . ." One officer, not sure of what he had just heard, asked appellant to repeat what he had said. Appellant again stated it was he who shot his wife.
Appellant was read his constitutional rights, at which point he stated it was not he but an unknown assailant who shot his wife. Appellant testified that either a black man, or a person with a black glove on his hand, walked up to appellant's car while he waited at a traffic light, and through the open rear window on the passenger side, fired a single shot into the back of his wife's head.
The prosecution produced substantial testimony to refute appellant's version of the shooting. Expert witnesses testified that the muzzle of the gun had been held directly against a scarf appellant's wife was wearing. Tests were conducted at the location appellant claimed the shooting took place. The police used a gun of the same caliber of the weapon that killed Mrs. Sero (the actual murder weapon has never been found), to determine whether powder residue would have been placed on the seat back and headrest if the incident had occurred as described by appellant and the gun had actually been placed against Mrs. Sero's scarf. No powder residue was found on the seat back or headrest after it was analyzed on the night of the crime, but large amounts were found after these test firings. The prosecution also produced two witnesses who lived near the site at which
appellant claims the incident occurred. Neither heard any loud noises near the time appellant claims the shooting occurred, yet both witnesses testified they clearly heard the gun shots fired when the police conducted the aforementioned test ...