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COMMONWEALTH v. WILLIAMS (04/20/72)

decided: April 20, 1972.

COMMONWEALTH
v.
WILLIAMS, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, Nos. 635 and 636, affirming order and judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1963, Nos. 732 and 733, in case of Commonwealth of Pennsylvania v. Edward A. Williams.

COUNSEL

John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, 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.

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

Author: Per Curiam

[ 447 Pa. Page 207]

Indicted for assault and battery with intent to murder, aggravated robbery and conspiracy, the appellant was jointly tried with his co-defendant before a judge sitting without a jury. Found guilty of all charges by the Philadelphia Court of Common Pleas, Trial Division, Criminal Section, he was sentenced after disposition of post-trial motions. An appeal to the Superior Court resulted in a unanimous per curiam affirmance. Com. v. Williams, 217 Pa. Superior Ct. 776, 268 A.2d 181 (1970). We granted allocatur.

Appellant's sole contention is that the evidence was insufficient to support his convictions. "[I]n determining if the evidence was sufficient to sustain the conviction, the test is, whether accepting as true all of the evidence (be it direct or circumstantial) and all reasonable

[ 447 Pa. Page 208]

    inferences arising therefrom, upon which the jury, or the trial court in a non-jury trial, could properly have reached its verdict, is it sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime of which he has been convicted. [Citation omitted]." Com. v. Wrona, 442 Pa. 201, 204, 275 A.2d 78, 79-80 (1971). Of course, the record in the instant appeal must be considered and read in the light most favorable to the Commonwealth. E.g., Com. v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971).

On these facts we need only consider the testimony of one victim, Grady Dews. Mr. Dews testified that appellant knocked down a Joe Freeman and stood over Freeman while the co-defendant took Freeman's wallet. Dews further testified that when he attempted to help Freeman, he was kicked in the face by the appellant and stabbed by the co-defendant. Notwithstanding the discrepancies in Dews' testimony and the dissimilarity between Dews' testimony and that of the other witnesses, the trier of fact may believe all, a part, or none of the testimony of any witness for the Commonwealth or defense. E.g., Com. v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970).

The circumstances of Dews' identification of appellant and the testimony of the other witnesses affect the credibility of Dews and the weight to be given to his testimony. These matters were considered by the trial judge who saw and heard the witnesses. Since an appellate court cannot adequately assess a witness' credibility from a cold record, we have erected a standard of review whereby we accept as true all evidence favorable to the verdict winner. Accepting Dews' testimony as true, appellant's convictions must be affirmed. The reasonable doubt which will prevent conviction must be the fact finder's doubt and not that of an appellate court. United States v. Stirone, 311 F. 2d 277 (3d Cir. 1962), cert. denied, 372 U.S. 935 (1963).

[ 447 Pa. Page 209]

The order of the Superior Court and the judgment of sentence of the Philadelphia Court of ...


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