Appeal from the September 8, 1987, Judgments of Sentence of Death by the Court of Common Pleas of Dauphin County at Nos. 1677, 1677A, and 1677B, 1985.
William C. Costopoulos, Lemoyne, for appellant.
Robert A. Graci, Chief Deputy Atty. Gen., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.
In this appeal this Court must review the three sentences of death imposed upon appellant, Jay C. Smith, by the Court of Common Pleas of Dauphin County for the first degree murder convictions of Susan Reinert and her two children, Michael and Karen Reinert. Appellant raises nineteen assignments of trial error for our review, including a challenge that the evidence is insufficient as a matter of law to sustain the convictions of three counts of murder in the first degree.
In accordance with our responsibility in cases in which the death penalty has been imposed by the finder of fact, this Court has the independent statutory obligation to review the sufficiency of the evidence supporting the conviction. 42 Pa.C.S. § 9711(h). Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied , 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The test to be applied is whether, viewing all of the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).
The Commonwealth need not prove the homicide by direct evidence; indeed in many instances, no witnesses are available to describe the incident which resulted in the death of the victim. Rather the Commonwealth may prove the homicide by circumstantial evidence. See, e.g., Commonwealth v. Romano, 392 Pa. 632, 141 A.2d 597 (1958); Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155 (1943). The Commonwealth may establish the fact of a homicide by proving the death of the victim and establishing
that the death resulted from criminal means. Commonwealth v. Williams, 455 Pa. 539, 316 A.2d 888 (1974); Commonwealth v. Dews, 429 Pa. 555, 239 A.2d 382 (1968); Commonwealth v. Frazier, 411 Pa. 195, 191 A.2d 369 (1963); Commonwealth v. Deyell, 399 Pa. 563, 160 A.2d 448 (1960); Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743 (1953).
In assessing the sufficiency of the evidence to establish that a homicide was committed and that the person or persons charged were those responsible, we are called upon to consider all of the testimony that was presented to the jury during the trial, without consideration as to the admissibility of that evidence. The question of sufficiency is not assessed upon a diminished record. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983); Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983); Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066, cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979); Commonwealth v. Firth, 479 Pa. 333, 388 A.2d 683 (1978); Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976). Where improperly admitted evidence has been allowed to be considered by the jury, its subsequent deletion does not justify a finding of insufficient evidence. The remedy in such a case is the grant of a new trial. Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Poteet, 434 Pa. 230, 253 A.2d 246 (1969); Commonwealth v. Gist, 433 Pa. 101, 249 A.2d 351 (1969); Commonwealth v. Pearson, 427 Pa. 45, 233 A.2d 552 (1967).
In this case the jury returned verdicts of guilt premised upon three acts of murder: the death of Ms. Susan Reinert, and the deaths of her two minor children. We will first assess the evidence in support of a finding that Ms. Reinert was murdered and that appellant participated in that act.
The Commonwealth presented evidence to establish that the nude body of Susan Reinert was found in the hatchback trunk compartment of a vehicle that was later discovered to have been owned by the victim. This vehicle was found in the parking lot of a Host Inn situated in Swatara Township, Dauphin County. The macabre discovery was made by a township police officer at approximately 5:20 a.m. on Monday, June 25, 1979. Earlier, at approximately 2:00 a.m., the same officer had observed the vehicle and noticed the hatch was up. At that point he intended to investigate further but was distracted by a radio dispatch requiring him to attend another matter. He subsequently returned to the area in response to an anonymous telephone call made to the ...