No. 262 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas of Northampton County, Criminal Division, No. 666 of 1977.
George A. Heitczman, Bethlehem, for appellant.
Richard Shiroff, Assistant District Attorney, Easton, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn*
[ 269 Pa. Super. Page 416]
Alfred Costanzo was tried by jury and found guilty of third degree murder in the shooting death of Stewart Beatty. At trial, he presented no evidence. On direct appeal, following the denial of post trial motions, he contends that the Commonwealth's evidence was insufficient to sustain a finding of an unjustified killing, i. e., one that was not committed in self-defense. We disagree.
The test to be applied is whether the evidence and all reasonable inferences therefrom were sufficient to support a finding of guilty by a jury beyond a reasonable doubt. Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977); Commonwealth v. Mitchell, 460 Pa. 665, 334 A.2d 285 (1975).
The Commonwealth's evidence at trial established that Stewart Beatty had been shot and killed on April 9, 1977 while in the basement of appellant's home. In a statement given to the police following the incident, appellant admitted that he had shot Beatty, but claimed that he did so because Beatty had attacked him with a knife. The evidence showed that a knife had been found in the basement near the body of the decedent.
Medical evidence showed that the fatal bullet had entered Beatty's body at the armpit and had travelled through his body in a downward direction. The inference which the Commonwealth asked the jury to draw from this fact was that the shot had been fired while appellant was in a position above Beatty.
[ 269 Pa. Super. Page 417]
The rifle used by appellant was owned by his son, Alfred Costanzo, Jr., who lived with appellant. The younger Costanzo testified that he kept the gun, along with a box of ammunition, in the closet of his second story room. Appellant's son had last used the rifle approximately one week before the shooting and had returned the gun and ammunition to the closet. The box of ammunition, he said, had then contained seven live rounds of ammunition. This box, when found in the basement of appellant's home after the shooting, contained only one live round. The rifle, which appellant delivered to the police, contained five live rounds. One spent casing was found on the basement floor.
The Commonwealth also introduced testimony by the decedent's wife that she had seen her husband and appellant's wife together on several occasions. Sometime prior to April 9, she had told appellant of her observations and suspicions. Appellant responded that he was not aware of the situation but that he would take care of it.
When there is evidence, from any source, that the defendant may have been acting in self-defense, the burden is on the Commonwealth to establish beyond a reasonable doubt that the killing was unjustified. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d ...