Com. v. Sero

• Decision Date: 28 April 1978
• Citation: 478 Pa. 440,387 A.2d 63
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joesph P. SERO, Appellant.
• Court: Pennsylvania Supreme Court

Page 63

387 A.2d 63

478 Pa. 440

COMMONWEALTH of Pennsylvania, Appellee, v. Joesph P. SERO, Appellant.

Supreme Court of Pennsylvania.

Argued May 27, 1977.

Decided April 28, 1978.

[478 Pa. 443] Frederic G. Antoun, Jr., Asst. Public Defender, for appellant.

LeRoy S. Zimmerman, Dist. Atty., Thomas J. Williams, III, Reid H. Weingarten, Deputy Dist. Attys., for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

MANDERINO, Justice.

Appellant Joseph Sero was tried before a judge and jury and convicted of murder of the first degree for the shooting death of his wife. Post-verdict motions were denied, and on September 3, 1976, appellant was sentenced to life imprisonment. This direct appeal followed. We now affirm the judgment of sentence.

Although appellant does not challenge the sufficiency of the evidence to sustain the conviction of murder of the first degree, we nevertheless must review the record to determine whether the evidence is sufficient to establish all the elements of that offense. 19 P.S. § 1187 (1964). Viewing the evidence in the light most favorable to the prosecution, the evidence is sufficient if, accepting as true all the evidence and all reasonable inferences 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 murder of the first degree. See, e. g., Commonwealth v. Motley, 472 Pa. 421, 372 A.2d 764 (197-); Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973). Reviewing the record in this light, we are persuaded that the jury's finding of the necessary elements of the offense is supported by sufficient evidence.

The prosecution's evidence established that on the evening of August 18, 1975, appellant and his wife had dinner together at a Harrisburg restaurant. The two left together at approximately 10:30 p. m. At 10:50 p. m., a nurse at Harrisburg Hospital observed appellant drive his car through a red light in front of the hospital and enter the front entrance of the hospital at a high rate of speed. Appellant's wife was in the front seat of the car, bleeding profusely from the mouth. Appellant shouted that someone shot his wife and asked directions to the emergency room.

Upon arriving at the emergency room entrance, appellant encountered two Harrisburg policemen in their patrol car about to go off duty. Both testified that appellant went over to the patrol car and stated that it was appellant that shot his wife. One officer testified that appellant's words were, "Oh my God, I shot my wife, help me," the other testified that appellant stated, "Oh my God, I just shot my wife." A third person, an off-duty police officer working as a hospital security guard, also testified that he heard appellant say "God, help me, I shot my wife. . . ." One officer, not sure of what he had just heard, asked appellant to repeat what he had said. Appellant again stated it was he who shot his wife.

Appellant was read his constitutional rights, at which point he stated it was not he but an unknown assailant who shot his wife. Appellant testified that either a black man, or a person with a black glove on his hand, walked up to appellant's car while he waited at a traffic light, and through the open rear window on the passenger side, fired a single shot into the back of his wife's head.

The prosecution produced substantial testimony to refute appellant's version of the shooting. Expert witnesses testified that the muzzle of the gun had been held directly against a scarf appellant's wife was wearing. Tests were conducted at the location appellant claimed the shooting took place. The police used a gun of the same caliber of the weapon that killed Mrs. Sero (the actual murder weapon has never been found), to determine whether powder residue would have been placed on the seat back and headrest if the incident had occurred as described by appellant and the gun had actually been placed against Mrs. Sero's scarf. No powder residue was found on the seat back or headrest after it was analyzed on the night of the crime, but large amounts were found after these test firings. The prosecution also produced two witnesses who lived near the site at which appellant claims the incident occurred. Neither heard any loud noises near the time appellant claims the shooting occurred, yet both witnesses testified they clearly heard the gun shots fired when the police conducted the aforementioned test outside their homes approximately four weeks after the actual shooting.

The prosecution also presented evidence to establish the motive appellant might have had for killing his wife. The prosecution presented testimony that appellant was in serious financial difficulties. His business had nearly failed while under his management, he had substantial loans outstanding, and appellant's home was scheduled to be sold at a sheriff's sale for failure to make mortgage payments. Appellant received notice of the sheriff's sale the same day his wife was shot. Although appellant's own life insurance policy had been cancelled, appellant kept up a $10,000 double indemnity life insurance policy on his wife as well as $25,000 of mortgage insurance on her life. It was also established that appellant had been discussing insurance matters with his insurance agent five days prior to the shooting, and that appellant telephoned his insurance company, in an effort to facilitate the processing of his claim, within hours after his wife expired.

Although the murder weapon was not discovered, appellant's insurance agent testified that in 1973, he saw a revolver in appellant's desk drawer at his place of business. The prosecution's last witness, a medical secretary employed at Harrisburg Hospital, testified that she observed appellant with his wife in the hospital's intensive care unit the day after the shooting, that he squeezed his wife's hand a number of times and stated in a normal speaking voice: "Son-of-a-bitch deserves to die."

Mrs. Sero died four days after the shooting, without ever regaining consciousness. Death was due to "massive damage to the brain and massive hemorrhage in the brain in the subarachnoidal space." These facts satisfy us that the evidence, taken as a whole, is sufficient to sustain the jury's conclusion that the killing was "willful, deliberate and premeditated" and thus constituted murder of the first degree. 18 Pa.C.S.A. § 2502(a), (d) (Supp.1977-78).

Appellant's first assignment of error is that certain juror misconduct warrants the grant of a new trial. Three weeks after the jury returned its verdict in the instant case, a woman who served as a juror was deposed and gave a statement in which she related what she believed to be jury misconduct. The only issue raised concerning the juror's deposition is the juror's statement that another juror told her that this juror's husband had spoken to appellant's brother who allegedly told him appellant was not a religious person but began studying the Bible after his wife's death. Appellant claims this was misconduct on the part of a juror's spouse, that prejudicial information was improperly communicated to a juror, and that this Court's decision in Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974), mandates a new trial. The prosecution argues alternatively that the juror's statement is an incompetent effort to impeach the jury's verdict; that the statement is objectionable as triple hearsay; and that prejudice that might have resulted from the conversation was harmless.

It is well established in this Commonwealth that a juror may not impeach his or her own verdict after the jury has been discharged, and a juror is not competent to testify as to what transpired in the jury room. Commonwealth v. Pierce, 453 Pa. 319, 322, 309 A.2d 371, 372-73 (1973); Commonwealth v. Patrick, 416 Pa. 437, 442, 206 A.2d 295, 297 (1965); Friedman v. Ralph Brothers, Inc., 314 Pa. 247, 249, 171 A. 900, 901 (1934). There are sound policy reasons, detailed elsewhere, for a rule which protects the inviolability of jury deliberations, and we need not reiterate those reasons here. See Friedman v. Ralph Brothers, Inc., supra, 314 Pa. 247, 171 A. 900 (1934). See also Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975).

In applying this rule, however, this Court has recognized that a flat prohibition against reviving such testimony would contravene another selfishly guarded public policy: that of insuring that an accused is judged by an impartial, indifferent jury of his peers. See Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974); Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972). We can maintain the viability of the jury as a judicial decision-making body only by guaranteeing that a verdict is reached by evidence and argument in open court, not by outside influences that might strip the jury of the impartiality we demand.

To accommodate these conflicting policies, we have carved out a narrow exception to the canon of "no impeachment," allowing post-trial testimony of extraneous influences which might have affected the jury during their deliberation. Compare Commonwealth v. Pierce, supra, 453 Pa. at 322, 309 A.2d at 372-73, with Commonwealth v. Zlatovich, 440 Pa. 388, 394-97, 269 A.2d 469, 472-73 (1970), and Welshire v. Bruaw, 331 Pa. 392, 200 A. 67 (1938). Accord, Fed.R.Evid. 606(b); United States v. Eagle, 539 F.2d 1166, 1169-71 (8th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977).

In light of these principles, we cannot agree with the prosecution that this witness was incompetent to testify, after the jury was discharged, to remarks communicated to another juror. Information, if prejudicial, that reaches a juror through a third party is precisely the evil our exception to the no impeachment rule is intended to obviate.

We agree with the prosecution, however, that the alleged...