Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, June T., 1971, No. 4801, in case of Commonwealth of Pennsylvania v. Deuene Hickman.
James A. Ashton, for appellant.
J. Kent Culley, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen dissents.
On October 7, 1971, Deuene Hickman was found guilty by a jury of murder in the first degree. Post-trial motions were denied and a sentence of life imprisonment was imposed. This appeal followed.
The crucial evidence adduced in the Commonwealth's case in chief was the identification testimony of the victim's son and daughter who saw the appellant fleeing from the scene. Appellant contends that the
identification testimony was insufficient to establish the guilt of appellant beyond a reasonable doubt. This contention is without merit.
Proof beyond a reasonable doubt of the identity of the accused as the person who committed the crime is essential to a conviction. Commonwealth v. Reid, 123 Pa. Superior Ct. 459, 187 A. 263 (1936). The evidence of identification, however, needn't be positive and certain in order to convict, although any indefiniteness and uncertainty in the identification testimony goes to its weight. Commonwealth v. Mason, 211 Pa. Superior Ct. 328, 236 A.2d 548 (1967). Direct evidence of identity is, of course, not necessary and a defendant may be convicted solely on circumstantial evidence. See, e.g., Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963); Commonwealth v. Whiting, 409 Pa. 492, 187 A.2d 563 (1963). The rule as stated in Commonwealth v. Kloiber, 378 Pa. 412, 424-25, 106 A.2d 820, 826, cert. denied 348 U.S. 875 (1954), is that "[w]here the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination positive and unqualified, the testimony as to identification need not be received with caution -- indeed the cases say that 'his [positive] testimony as to identity may be treated as the statement of a fact': Commonwealth v. Ricci, 161 Pa. Superior Ct. 193, 195, 54 A.2d 51; Commonwealth v. Sharpe, 138 Pa. Superior Ct. 156, 159, 10 A.2d 120."
In the instant case two witnesses positively identified the appellant as the one seen fleeing the house. The possible bias of the witnesses and the circumstances surrounding their opportunities to see their mother's assailant were questions for the jury. The test of sufficiency of evidence is whether accepting as true all evidence
and all the reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that defendant is guilty. Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970). Here, where both witnesses were acquainted with the subject of identification, their positive unqualified identifications were ...