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COMMONWEALTH PENNSYLVANIA v. THOMAS ROBERTS (12/17/81)

decided: December 17, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
THOMAS ROBERTS, JR., APPELLANT



No. 262 January Term, 1979, Appeal from Judgment of Sentence imposed by Northampton County Court of Common Pleas, Criminal Division, on June 12, 1979.

COUNSEL

Philip D. Lauer, Easton, for appellant.

Robert A. Freedberg and Domenic P. Sbrocchi, Asst. Dist. Atty., for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.

Author: Roberts

[ 496 Pa. Page 430]

OPINION OF THE COURT

Appellant Thomas Roberts, Jr., was convicted of murder of the third degree following a non-jury trial and sentenced to a term of ten to twenty years' imprisonment. On this direct appeal he raises a number of alleged errors in support

[ 496 Pa. Page 431]

    of his contention that he should be granted a new trial. Our review of the record convinces us that there is no basis for relief, and we accordingly affirm judgment of sentence.

Viewed in the light most favorable to the Commonwealth as verdict winner, the evidence presented at trial establishes that at about 6:00 a. m. on April 1, 1978, appellant entered Otto's Cafe in Wilson Borough, Northampton County, by kicking in the front door. Upon hearing the intruder, the victim, Otto Ehritz, proprietor of the cafe, went downstairs from his residence on the second floor of the building, carrying his gun. His wife also went downstairs, using another set of steps. Mrs. Ehritz testified that as she went through the downstairs kitchen approaching the bar, she heard a shot. When she reached the bar area, she saw her husband slumped over a bottle cooler and appellant holding up his body. Appellant then fired a shot at her. As she fled back upstairs, she heard two more shots. She told her daughter to call the police, and both women then ran to second-floor windows and called for help. Shortly thereafter, the police arrived and apprehended appellant a short distance from the cafe.

An autopsy of the victim disclosed three bullet wounds. According to the Commonwealth's pathologist, the first bullet caused a superficial wound in the neck; the second entered the left side of the victim's face and perforated an area of the brain; and the third, fired from extremely close range, penetrated the victim's left temple and exited from the right side of his head.

The Commonwealth initially charged appellant with murder of the first degree, but later certified that the charge rose no higher than murder of the third degree. Appellant defended on the ground that he was legally insane at the time he committed the act.

Appellant's first contention is that the trial court erred in refusing his request for a ...


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