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.
*152 “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,
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 *153 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,
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, “[ajlthough 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, supra488 Pa. at 543 ,412 A.2d at 1365 . See Commonwealth v. Dawson,464 Pa. 254 ,346 A.2d 545 (1975).
Commonwealth v. Hardcastle,
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. “[Tjhe failure to establish a prima facie case at a preliminary hearing 'is clearly immaterial where at the trial the
*154
Commonwealth met its burden of proving the [offense] beyond a reasonable doubt.’ ”
Commonwealth v. Troop,
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,
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 *155 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, supra518 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.,
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,
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.
*156 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 ... concluding] that probable cause existed.”
Commonwealth v. Melilli,521 Pa. 405 , 419,555 A.2d 1254 , 1261 (1989) (citation omitted), quoting Gates, supra462 U.S. at 237-38 ,103 S.Ct. at 2332 .
Commonwealth v. Echevarria,
Before an issuing authority may issue a constitutionally valid search warrant he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search. Commonwealth v. Davis,466 Pa. 102 ,351 A.2d 642 (1976); Commonwealth v. Jackson,461 Pa. 632 ,337 A.2d 582 , cert. denied,423 U.S. 999 ,96 S.Ct. 432 ,46 L.Ed.2d 376 (1975); Commonwealth v. D’Angelo,437 Pa. 331 ,263 A.2d 441 (1970). The requisite probable cause must exist at the time the warrant is issued and be based on facts closely related in time to the date of issuance. Commonwealth v. Tolbert,492 Pa. 576 ,424 A.2d 1342 (1981); Commonwealth v. Jackson, supra; Commonwealth v. *157 Eazer,455 Pa. 320 ,312 A.2d 398 (1973); Commonwealth v. McCants,450 Pa. 245 ,299 A.2d 283 (1973); Commonwealth v. Simmons,450 Pa. 624 ,301 A.2d 819 (1973). If the district justice is presented with evidence of criminal activity at some prior time, it must also be established that the criminal activity continued up to the time of the request for the warrant in order to support a finding of probable cause.
Commonwealth v. Jones,
The affidavit in this case contained averments that Renninger had been shot on Bybel’s property with a .22 caliber rifle. It then recited the observations of eight named witnesses who had observed Bybel’s responses to trespassing motorcyclists on prior occasions. These responses included Bybel’s appearance with a rifle, his making threats to shoot trespassers, and, on occasion, the firing of shots. Finally, the affidavit recited that Bybel was known to own a .22 caliber rifle because police had confiscated it seven months earlier and had returned it to his granddaughter. Thus, the police had relied on the circumstances of the killing, Bybel’s known ownership of a gun of the same type from which the fatal shot had been fired, and a course of conduct on the part of Bybel which evidenced violence and threats of violence against trespassing motorcyclists. This established probable cause for the issuance of a warrant to search Bybel’s residence for the offending .22 caliber rifle.
Because the affidavit recited a continuing course of conduct leading up to the date of Renninger’s death, appellant’s contention that the warrant was issued on stale information must fail. See:
Commonwealth v. Stamps,
On July 5, 1987, the day of the killing, police approached appellant, who owned the land on which Renninger’s body had been found, and asked him if he would come to the police station to discuss the incident. Appellant voluntarily accompanied police and, at the police station, was 'questioned for approximately twenty minutes. During that time, appellant said that he had been working on his land and had been around the house on the day of the shooting but had not seen or heard anything related thereto. At the end of the interview, appellant was taken back to his home.
On July 8, 1987, police again asked appellant to come to the police station. He initially refused, but later he appeared with his son and a lawyer. When police attempted to question him, however, he accepted the advice of counsel and declined to answer questions. Police then produced a search warrant for appellant’s home. Upon arrival at appellant’s home, he led police into the cellar, where he pointed to a rifle in the rafters and said, “there it is.” Appellant was arrested and charged with murder on July 10, 1987.
Appellant argues that his several statements to the police should have been suppressed because they were not preceded by Miranda warnings. 2 The trial court found, however, that appellant had not been subjected to custodial interrogation on either July 5 or July 8. Because there had been no custodial interrogation, the court held, Miranda warnings were unnecessary. We agree with this analysis.
*159 Miranda warnings are necessary only on those occasions when a suspect is undergoing actual “custodial interrogation.” The fact that a defendant was the focus of the investigation is a relevant factor in determining whether he was “in custody.” However, the fact that a police investigation has focused on a particular person no longer automatically requires Miranda warnings.
Commonwealth v. Fento,
Among the factors the court utilizes in determining whether the detention is custodial or investigative are: the basis for the detention; the duration; the location; whether the suspect was transported against his will, how far, and why; whether restraints were used; the show, threat, or use of force; and the methods of investigation used to confirm or dispel suspicions.
Commonwealth v. Haupt,
In reviewing the trial court’s finding that appellant had not been subjected to custodial interrogation, we must determine whether the finding was supported by competent evidence. “In making this determination, we consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.”
Commonwealth v.
*160
Dillon,
On both occasions, appellant’s presence at the police station was voluntary. On neither occasion was he placed under arrest or subjected to force or threat of force. The first interrogation continued for only twenty (20) minutes, and on the second occasion appellant was accompanied by his lawyer. At his home during execution of the search warrant, appellant’s counsel was also present. Under the totality of these circumstances, the trial court could properly find that appellant was not under arrest or subject to coercion from which he could reasonably believe that he was in custody. See:
Berkemer v. McCarty,
When the trial started, appellant was charged, in a separate count of the information, with involuntary manslaughter. After the evidence had been presented and before the case was submitted to the jury, the Commonwealth asked the trial court to “dismiss” the charge of involuntary manslaughter. The defense objected and specifically requested the court to instruct the jury that involuntary manslaughter was a possible verdict. The trial court held that there was no evidence to support a finding *161 of involuntary manslaughter and refused to charge that a finding of involuntary manslaughter was possible. Although the court refused to charge on a reckless or grossly negligent homicide, the court nevertheless instructed the jury that it could find that Renninger’s death had been caused by accidental misadventure. Appellant argues that the court erred when it refused to instruct the jury on involuntary manslaughter. We are constrained to agree.
The rule pertaining to the necessity for an involuntary manslaughter charge has been settled by recent Supreme Court decisions. In
Commonwealth v. White,
In the instant case, appellant had been specifically charged, inter alia, with involuntary manslaughter and had been actually tried on such a charge. It was not until all the evidence had been presented and in an effort to avoid a possible finding of involuntary manslaughter by the jury that the prosecution requested the court to withdraw the involuntary manslaughter charge from the jury’s consideration. The defense objected vehemently and made repeated requests for an instruction on involuntary manslaughter. On review, therefore, the only issue to be determined is whether the evidence, viewed in a light most favorable to the defendant, would have permitted a finding that appellant’s crime was involuntary manslaughter.
Commonwealth v. Terrell,
Appellant was an eighty-one year old defendant, who offered no evidence in defense of the charges against him. His lawyer argued, in view of the trial court’s ruling, that if the jury found that appellant had fired the shot which killed Renninger, it should find the killing to be accidental. He contended that appellant had been harassed—perhaps even beaten—by motorcyclists who had trespassed on his land. The land was uneven and heavily wooded. On the land, about one hundred yards from the house, was a lane over which the motorcycles, with engines screaming, would be driven by their operators. On at least one prior occasion appellant had threatened to shoot a motorcyclist, and on others he was known to have fired warning shots from his .22 caliber rifle. Until the death of Renninger, no one had ever been struck by bullets fired by appellant. Indeed, there was no sight on the rifle. Thus, a jury could have found, as his counsel argued to the court, that the shot which killed Renninger was fired from a distance as great as one hundred yards, through the woods, and struck a *163 motorcyclist moving at a high rate of speed over uneven terrain. A jury might also have found that the shot was intended, as shots had been intended in the past, as a warning and that it had accidentally gone astray. The Commonwealth’s decision to charge appellant with involuntary manslaughter suggests that it was not unaware of this possibility.
Under these circumstances, we conclude that it was error to refuse appellant’s request for a charge on involuntary manslaughter. See: Commonwealth v. Draxinger, supra (where any version of evidence in homicide trial supports a verdict of involuntary manslaughter, charge on involuntary manslaughter must be given if requested). The error is magnified by the trial court’s decision to instruct the jury on accidental misadventure. Inasmuch as involuntary manslaughter is distinguishable from accidental misadventure primarily by conduct which is reckless or grossly negligent, an involuntary manslaughter charge was warranted. When the trial court refused appellant’s request for a charge on involuntary manslaughter it erred.
The trial court also erred when it allowed the prosecution to introduce evidence that a loaded .22 caliber rifle had been removed by police from appellant’s car following a minor accident which had occurred seven (7) months prior to the shooting. The evidence was irrelevant to the identity of Renninger’s killer and the circumstances under which he had died. The evidence was also unfairly prejudicial to the defendant, for it depicted him as a “gun happy” old man who was unable to drive safely.
The Commonwealth argues that it was relevant because the gun thereafter had been delivered to appellant’s granddaughter and thus had been available to appellant at the time of the shooting. In fact, however, there was no evidence that the offending gun had been given to appellant by his granddaughter and, in any event, the gun had been found in appellant’s basement following the shooting, where appellant identified it for the police. In view thereof, the seizure of the gun by police following an accident seven *164 months earlier added nothing to the Commonwealth’s case against appellant except to discredit him unfairly.
“Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when to some degree advances the inquiry and thus has probative value.”
Commonwealth v. Moore,
• Reversed and remanded for a new trial. Jurisdiction is not retained.