No. 488 January Term, 1978, No, 36 January Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Berks County, at Nos. 654 and 655 (654A and 655A) of 1975
John A. Boccabella, Wyomissing, for appellant.
Charles M. Guthrie, Jr., Asst. Dist. Atty., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
This is an appeal from an order imposing judgment of sentence entered October 24, 1978 in the Court of Common Pleas of Berks County, Pennsylvania.
Appellant, Terry A. Dreibelbis, was, on October 21, 1977, convicted by a jury of murder of the first degree and various lesser offenses. Post-verdict motions for new trial and in arrest of judgment were filed, argued, and on July 27, 1978, denied. On October 24, 1978, appellant was sentenced to imprisonment for life on the count charging murder of the first degree and to consecutive terms of imprisonment of one-to-two years and ten-to-twenty years on the lesser offenses. Hence this appeal.
Appellant urges upon us nine assignments of error; among them, and to which we first turn, is a claim that the evidence adduced at trial was insufficient to support the verdicts. It is well settled that in passing upon a claim of insufficiency we must view the evidence in the light most favorable to the verdict winner. The evidence is sufficient if, accepting as true all the evidence and all reasonable inferences therefrom 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 the crimes for which he was convicted. Commonwealth v. Horne, 479 Pa. 496, 388 A.2d 1040 (1978).
Moreover, it is the province of the trier of fact, who is free to believe all, part or none of the evidence, to pass upon the credibility of witnesses and the weight to be accorded the evidence. Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978). Finally, evidence may be sufficient to
convict even though wholly circumstantial. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).
The Commonwealth's evidence at trial showed the following: On February 19, 1973, Frank and Davidina Szabo, husband and wife, returned with their children, Michael and Frances, to their farmhouse on Route 422 in Amity Township, Berks County, Pennsylvania, from a short family vacation. At approximately 7:15 p. m. on that date, a man subsequently identified as William Kahley approached the kitchen door of the Szabo residence. Michael Szabo, at that time fifteen years old, answered the door and admitted Kahley. Kahley, armed with a pistol, directed Michael Szabo to raise and lower a window shade several times. After Michael Szabo did as ordered, a second man, wearing a ski mask and also armed with a pistol, entered the kitchen. The men asked for money which Davidina gave them from her purse and rosary case. Subsequently shots were fired which struck and wounded Michael Szabo and struck and killed Frank Szabo. Doctor Mark Reed, Director of Pathology of Reading Hospital, testified that his post-mortem examination of the body of Frank Szabo revealed that the victim had been shot four times in the neck and chest. The cause of death was determined to have been massive hemorrhage caused by bullet wounds of the chest.
Gerald Styers, Pennsylvania State Police ballistics expert, testified his analysis of the four bullets removed from the body of the victim demonstrated they had been fired from two different .38 caliber handguns.
On the date of the instant crime appellant resided in Reading, Pennsylvania, with Joan Sehl Manwiller. Ms. Manwiller testified at trial that appellant was out part of the evening of February 19, 1973. Appellant returned to the apartment he shared with Manwiller after dark on that date accompanied by Kahley, packed some clothing with Manwiller's assistance, and left. Appellant never returned to the Reading apartment. Ms. Manwiller further testified she owned a black vinyl folder which she kept in a bureau drawer. At some point after appellant left her apartment
Manwiller discovered the folder was missing. A black vinyl folder identical to Ms. Manwiller's was carried by Kahley at the time of the instant crimes and was left behind at the Szabo residence. Ms. Manwiller also testified she was the owner of a 1966 green Volkswagen automobile, a set of keys to which both she and appellant possessed.
Calvin Rice testified for the prosecution that he was an employee of Templin's Amoco Station, located on Route 422 approximately one-quarter mile from the Szabo residence. Mr. Rice testified that at approximately 7:30 or 8:00 p. m. on February 19, 1973, a green Volkswagen automobile occupied by two persons was driven into his service station. He could identify neither.
Mrs. Roberta Chesonis testified at trial that she was the wife of Thomas Chesonis, nicknamed "Patch head." She testified that appellant and William Kahley, both of whom she knew, arrived at her home on a night in February, 1973, in a green Volkswagen. Mrs. Chesonis overheard a conversation among appellant and Kahley, whom she knew to be nicknamed "Sloopy," and her husband. Mrs. Chesonis testified the three men argued concerning a "folder" which they had "forgotten." Thomas Chesonis said "Why did they leave any witnesses, they should have killed everyone." Mrs. Chesonis testified appellant and Kahley changed out of their clothes and burned the clothing they had been wearing when they arrived. While in the Chesonis home appellant and Kahley cut and dyed their hair and shaved their beards.
Ms. Patty Anderson testified for the prosecution that she dated appellant in Bridgeport, Connecticut in 1975 and 1976. Ms. Anderson testified that in April, 1976, she questioned appellant concerning his background. In response to her inquiries appellant told Ms. Anderson that "him and his friend, a guy named Sloopy, went over to this man's house and the man supposedly owed them some money or something, and they went to pick it up and the guy didn't want to pay them and so, I guess, they were ...