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submitted: February 24, 1983.


No. 1096 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Venango County, Criminal Division, at S.D. No. 18 of 1981.


John Patrick Fonzo, Franklin, for appellant.

William G. Martin, Jr., Assistant District Attorney, Franklin, for Com., appellee.

Spaeth, Brosky and Montemuro, JJ.

Author: Montemuro

[ 320 Pa. Super. Page 251]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Venango County entered against the appellant, James Edward Hartzell. Appellant was charged with criminal homicide in connection with the shooting death of Linda Jane Miller. A consolidated jury trial was held for the appellant and a co-defendant, Robert Middleton, in which the appellant was found guilty of first degree murder.*fn1 His motions for a new trial and in arrest of judgment were denied by the trial court and he was sentenced to life imprisonment.

The appellant raises several claims of error herein. First, he contends that the evidence was insufficient to sustain a verdict of guilty to the charge of first-degree murder.*fn2 Second, he contends that the trial court erred in allowing

[ 320 Pa. Super. Page 252]

    testimony concerning other criminal acts of the appellant. Third, he contends that he was denied a fair trial because his trial was consolidated with that of co-defendant, Robert Middleton. Finally, he contends that the trial court erred in allowing prejudicial testimony by a police officer concerning boot prints at the scene of the crime committed subsequent to the shooting of Miller. After due consideration of the appellant's claims, we find them to lack merit, and consequently, would affirm the judgment of sentence of the trial court.

The appellant's claims will be addressed seriatim beginning with the contention that the evidence was insufficient to sustain the verdict. The appellant's argument is trifold. He contends the evidence was insufficient to prove; that he was present at the scene of the homicide; that he fired the fatal shot; and that he possessed the requisite intent to kill in order to sustain a conviction of first degree murder.

The standard which we are required to apply in reviewing the appellant's insufficiency claim was set forth by this court in Commonwealth v. Volk, 298 Pa. Super. 294, 300, 444 A.2d 1182, 1184 (1982), in which the court said:

First, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the factfinder could have based the verdict and then we must ask whether that evidence along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa. Super. 494, 402 A.2d 546 (1979); Commonwealth v. Eddington, 255 Pa. Super. 25, 386 A.2d 117 (1978); Commonwealth v. Luther, 266 Pa. Super. 240, 403 A.2d 1329 (1979).

At this point, a review of the evidence in light of this standard is appropriate.

On the evening of January 17, 1981, Robert Middleton, Jerry Rice and John Perry drove to the appellant's house to attempt to sell to the appellant a set of stereo speakers and a .44 magnum handgun which Rice and Middleton had obtained in a burglary earlier. The handgun was loaded

[ 320 Pa. Super. Page 253]

    and kept in the glove compartment of Rice's automobile. While at the appellant's house they each had a few whiskey and orange juice cocktails and discussed driving into Oil City to "rob drunks". They also discussed going to Rouseville to rob one Carrie Schilk, a cousin of the appellant. Rice, Middleton, Perry and the appellant left the appellant's home at approximately 10:30 to 11:00 P.M. They were all in Rice's automobile. Perry was dropped off at his house in Pin Oak Village and the others proceeded to Oil City.

Once there, Rice parked the vehicle. The three men went to a bar called "Scrubby's". Middleton and appellant stayed and had a drink. Rice left because he was underage and the barmaid refused to serve him. Rice went out to the street and waited for a victim. Rice soon became cold and returned to his automobile where he was met by Middleton and the appellant. It was approximately 1:00 A.M.

It was at this time the criminal activity, later described by some as a "crime spree", began. Rice saw a man who was carrying several cartons leaving a nearby bar. The man got into his car. After some discussion among the felons, Rice exited the vehicle with the gun and walked over to the car and knocked on the window. The man, one William Gesin, opened the window whereupon Rice produced the pistol and demanded Gesin's wallet. Rice took the proffered wallet and told Gesin to drive straight over the hill. He then returned to the car where the proceeds of the crime were divided.

The three men then decided to leave and re-enter Oil City as an evasive maneuver to escape detection for the Gesin robbery. Rice was driving, Middleton was in the front passenger seat and the appellant was sitting behind Middleton in the rear seat. The gun was on an arm rest between Rice and Middleton. They drove a few miles out of town and then returned to Oil City, with their ultimate destination being ...

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