Charles N. Caputo, Michael W. Zurat, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., files a concurring and dissenting opinion.
This is an appeal from convictions for voluntary manslaughter, 18 Pa. C.S.A. § 2503 (1973), and for violations of the Uniform Firearms Act, id. §§ 6105, 6106 (ex-convict not
to possess a firearm and carrying an unlicensed firearm, respectively).*fn1 Appellant was sentenced to three to ten years imprisonment for the manslaughter conviction and one to five years imprisonment for the firearms convictions; the firearms sentence was to run consecutively with the manslaughter sentence. In reviewing the evidence in a light most favorable to the verdict winner, here the Commonwealth, Commonwealth v. Alexander, 477 Pa. 190 at 192, 383 A.2d 887 at 888 , the following facts are disclosed: On the evening of September 28, 1974, appellant and the victim, Charles Heresco, were drinking at the bar of a private club. During the course of the evening, appellant and the victim became engaged in an argument over a sum of money that the victim had loaned appellant earlier that same evening. When the argument became more heated, the bartender on duty, Robert Heresco, the victim's brother, intervened to quiet the dispute. At that point appellant began arguing with the bartender also. Shortly thereafter appellant told his wife to get his gun out of the car, which was parked outside of the club. Appellant's wife left the club. Soon after her departure, the bartender insisted that appellant and the victim leave the club; the bartender escorted the two men out to the parking lot and then returned to his duties inside the club.
Appellant and the victim, both intoxicated, resumed their argument in the parking lot. Then appellant's wife arrived driving an automobile. At that time appellant went over to the driver's side and told his wife to get out. When she refused, he struck her in the chest, pulled her out of the car, and got into the driver's seat himself. Then the victim leaned into the driver's side saying, "don't, don't, don't!" Seconds later there was a single gunshot; the victim fell back onto the curb, and appellant sped away in the vehicle. Shortly after the shooting, the victim was pronounced dead on arrival at a nearby hospital.
Later examination disclosed that death was caused by a bullet wound to the head; the round recovered was from a .38 caliber weapon. There was no evidence that the victim was armed. None of the several eyewitnesses actually saw the weapon, and the authorities never recovered the weapon used by appellant.
In the instant appeal appellant challenges the sufficiency of the evidence to support the firearms verdicts.*fn2 In its opinion disposing of appellant's written post-trial motions, the trial court ruled that the evidence was sufficient to support the firearms verdict. For the following reasons, we disagree and therefore reverse the judgment ...