Com. v. Bybel

• Decision Date: 28 March 1990
• Parties: COMMONWEALTH of Pennsylvania v. Peter A. BYBEL, Appellant.
• Court: Pennsylvania Superior Court

Page 1380

581 A.2d 1380

399 Pa.Super. 149

COMMONWEALTH of Pennsylvania v. Peter A. BYBEL, Appellant.

Superior Court of Pennsylvania.

Argued March 28, 1990.

Filed Nov. 5, 1990.

Emmanuel H. Dimitriou, Reading, for appellant.

Charles M. Guthrie, Jr., Asst. Dist. Atty., Reading, for Com.

Before WIEAND, BECK and POPOVICH, JJ.

WIEAND, Judge.

Peter Bybel was tried by jury and was found guilty of third degree murder in the shooting death of David Renninger on July 5, 1987. ¹ Post-trial motions were denied, and a sentence of imprisonment was imposed. On direct appeal, Bybel challenges the sufficiency of the evidence to sustain the conviction and alleges numerous trial errors. After careful review, we conclude that a new trial is necessary.

"In reviewing appellant's challenge to the sufficiency of the evidence we must determine 'whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.' " Commonwealth v. Sabharwal, 373 Pa.Super. 241, 243, 540 A.2d 957, 958 (1988), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984).... The same standard is applicable in cases, such as the instant case, where the evidence supporting a conviction "is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988). See also: Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Petrisko, 442 Pa. 575, 579-580, 275 A.2d 46, 49 (1971). There is no requirement that the Commonwealth exclude all possibility that a third party may have committed the crime. See: Commonwealth v. Sullivan supra [472 Pa.] at 152-153, 371 A.2d at 479; Commonwealth v. Kravitz, 400 Pa. 198, 212-213, 161 A.2d 861, 868 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

Commonwealth v. Akers, 392 Pa.Super. 170, 181, 572 A.2d 746, 751 (1990).

On July 5, 1987, David Renninger's dead body was found lying beside his motorcycle along a path which crossed wooded property owned by Peter Bybel in Berks County. Renninger had been killed by a bullet fired from a .22 caliber rifle. Such a rifle was found in the basement of Bybel's home. Expert testimony identified it as the rifle from which the fatal shot had been fired. Bybel, the evidence showed, had been working around his property on the day of the shooting. Other evidence showed that Bybel, an eighty-one (81) year old man, had threatened, on prior occasions, to shoot persons who had operated motorcycles in the same area. A week before the shooting, Bybel had told a cyclist that if the rider returned, he, Bybel, would shoot him, "no questions asked." Approximately two and one-half months before, another motorcyclist in the same area had seen Bybel carrying a rifle and had heard shots as he rode away. A year before, another motorcyclist had reported shots being fired in the same area, and still earlier, Bybel had confronted a motorcyclist with a rifle. A neighbor testified that on several occasions he had observed appellant running towards the path, carrying a rifle, as motorcycles passed.

This evidence, although circumstantial, was sufficient to enable a jury to find that it was appellant who had fired the fatal shot. See and compare: Commonwealth v. Vedam, 349 Pa.Super. 270, 502 A.2d 1383 (1986). It was also sufficient to show a killing with malice.

There is no requirement that a homicide ... be proven by eyewitness testimony. Circumstantial evidence may be sufficient to prove any element, or all of the elements of the crime. Commonwealth v. Crowson, 488 Pa. 537, 542, 412 A.2d 1363, 1365 (1980); Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972); Commonwealth v. Chester, 410 Pa. 45, 188 A.2d 323 (1963). Furthermore, "[a]lthough no single bit of evidence may conclusively establish guilt, the verdict will be sustained where the totality of the evidence supports the finding of guilt." Crowson, supra 488 Pa. at 543, 412 A.2d at 1365. See Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975).

Commonwealth v. Hardcastle, 519 Pa. 236, 250, 546 A.2d 1101, 1107-1108 (1988). The trial court properly denied appellant's motion in arrest of judgment.

Because the evidence at trial was sufficient to support the verdict, appellant's claim that the trial court erred in failing to grant habeas corpus relief is also lacking in merit. "[T]he failure to establish a prima facie case at a preliminary hearing 'is clearly immaterial where at the trial the Commonwealth met its burden of proving the [offense] beyond a reasonable doubt.' " Commonwealth v. Troop, 391 Pa.Super. 613, 620, 571 A.2d 1084, 1088 (1990), quoting Commonwealth v. McCullough, 501 Pa. 423, 427, 461 A.2d 1229, 1231 (1983). Appellant's claims that the trial court erred in denying a defense demurrer and a motion for directed verdict are equally without merit. See: Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Bastone, 321 Pa.Super. 232, 467 A.2d 1339 (1983). See also: Commonwealth v. Chapman, 255 Pa.Super. 265, 386 A.2d 994 (1978).

Appellant argues, however, that the trial court erred by allowing testimony from other trespassers who had been threatened by appellant or who had heard shots fired while on his land. The applicable law was stated by the Supreme Court of Pennsylvania in Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), as follows:

Evidence of a defendant's distinct crimes are not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988). However, this general proscription against admission of a defendant's distinct criminal acts is subject to numerous exceptions where special circumstances exist which render such evidence relevant for some legitimate evidentiary reason and not merely to prejudice the defendant by showing him to be a person of bad character. Some of the exceptions that this Court has recognized in the past as legitimate bases for admitting evidence of a defendant's distinct crimes include (but are not limited to): (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one naturally tends to prove the others; (5) to establish the identity of the person charged with the commission of the crime on trial where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where defendant's prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called "res gestae" exception). See Commonwealth v. Lark, supra 518 Pa. at 302, 543 A.2d at 497 and cases cited therein, and Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987).

Id. at 177, 555 A.2d at 840. In the instant case, the evidence of prior threats and shootings was relevant to show (1) the identity of Renninger's killer, (2) his intent, and (3) the motive for the killing. It was particularly compelling when coupled with evidence that the death dealing weapon had been owned by appellant and had been found in the basement of his home. The trial court did not err when it received evidence of appellant's prior conduct toward trespassing motorcyclists.

Appellant also complains that the trial court inadequately instructed the jury regarding the purpose of the evidence relating to his prior conduct. However, appellant took no exception to this portion of the trial court's charge, and this issue, therefore, has been waived. See: Pa.R.Crim.P. 1119(b). See also: Commonwealth v. Billa, supra at 181, 555 A.2d at 842; Commonwealth v. Barnhart, 290 Pa.Super. 182, 434 A.2d 191 (1981). Moreover, our review of the trial court's charge suggests that the jury was properly instructed. The trial court was not required to advise the jury whether appellant's prior acts were criminal and, if so, the precise identity of the offenses which he had committed.

Appellant next contends that the trial court erred when it refused to suppress the murder weapon found in the basement of his home. He argues that the search, although conducted pursuant to warrant, was illegal because it was not supported by probable cause.

In determining probable cause, Pennsylvania has adopted the "totality of the circumstances" test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and followed in Commonwealth v. Gray [,] 509 Pa. 476, 503 A.2d 921 (1985). The test now utilized for analyzing warrants is as follows:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing] that probable cause existed."

Commonwealth v. Melilli, 521 Pa. 405, 419, 555 A.2d 1254, 1261 (1989) (citation omitted), quoting Gates, supra 462 U.S. at 237-38, 103 S.Ct....