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COMMONWEALTH v. THOMAS (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
THOMAS, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1967, No. 1483, in case of Commonwealth of Pennsylvania v. Lawyer Thomas.

COUNSEL

Edward Rosenwald and Leonard Levin, for appellant.

James T. Ranney, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: Eagen

[ 444 Pa. Page 438]

This is an appeal from the judgment of sentence imposed upon the appellant, Lawyer Thomas, following his conviction of murder in the second degree by a judge sitting without a jury.

Five principal errors are alleged to have occurred during the trial proceedings below which assertedly either require an arrest of judgment or a new trial. After studying the assignments of error with the trial record, we are convinced the judgment should be affirmed.

It is first urged that the trial court erred in refusing to sustain a demurrer to the Commonwealth's trial evidence because of inconsistencies and discrepancies therein, or, alternatively, because it was insufficient as a matter of law to establish Thomas' guilt beyond a reasonable doubt. This contention is clearly without merit.

[ 444 Pa. Page 439]

The prosecution emanated from the fatal shooting of one George Gorrell in Philadelphia. Three eyewitnesses testified that Thomas and George Whitfield strode up to a group of teenage boys standing on a street corner; that without immediate provocation Thomas punched one of the boys, Gorrell, with his fist and as the latter fell backward, Thomas drew a revolver and shot him in the head. This evidence amply meets the test to be applied in determining the sufficiency of the evidence to sustain a criminal conviction, which test we have repeatedly enunciated. For example, see Commonwealth v. Williams, 443 Pa. 85, 277 A.2d 781 (1971).

While there were some discrepancies in the testimony of the witnesses who testified for the Commonwealth, they were not as grave as appellant would have us believe and certainly do not compel a finding of reasonable doubt as a matter of law.

For instance, one of the eight Commonwealth witnesses testified she "thought" she heard two noises that sounded like firecrackers, whereas the remainder of the witnesses heard but one single shot.

There was also a discrepancy between the weight of the specimen bullet removed from the decedent's head (37 1/4 grains) and the 40-grain bullets seized by the police in the Thomas residence. However, while positive identification of the specimen bullet was impossible due to its mangled condition, an expert testified that the sheared and flattened bullet extracted from decedent's head would be consistent with being a .22 "long rifle" bullet such as those found in the Thomas house.

Likewise, there was some inconsistency among the witnesses as to how many others were with Thomas as he approached the Gorrell group. Some thought there were two, while others said there was only one, namely, ...


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