Appeal from order of Court of Common Pleas of Chester County, Sept. T., 1970, No. 195, in case of Commonwealth of Pennsylvania v. William Ray Blevins.
Michael Joseph Melody, Jr., First Assistant District Attorney, with him William H. Lamb, District Attorney, for Commonwealth, appellant.
Lawrence M. Aglow, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix.
The principal question presented by this appeal is whether the evidence offered by the Commonwealth was sufficient as a matter of law to support the jury's verdict of murder in the second degree. The appellee, William Ray Blevins, was indicted on the charges of murder and involuntary manslaughter as a result of the death of Jeffrey Dishman, the three year old natural child of the appellee and Anna Dishman.*fn1 A jury returned a verdict of murder in the second degree and post trial motions were filed. After argument the court sustained appellee's motion in arrest of judgment and ordered his discharge. The Commonwealth has taken this appeal.
Where the question is purely one of law the Commonwealth may appeal from an adverse ruling in a criminal case. Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961); Commonwealth v. Hartman, 383 Pa. 461, 119 A.2d 211 (1956); Commonwealth v. Wallace, 114 Pa. 405, 6 A. 685 (1886). Here the pure issue of law is whether the testimony offered at trial by the Commonwealth was insufficient to support the
jury's finding of second degree murder. To so find, as did the court below,*fn2 it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed the jury could properly have based its verdict, it would be nonetheless insufficient in law to find beyond a reasonable doubt that the appellee is guilty of the crime charged. Commonwealth v. Ponton, 450 Pa. 40, 44, 299 A.2d 634 (1972); Commonwealth v. Oates, 448 Pa. 486, 489, 295 A.2d 337 (1972); Commonwealth v. Chasten, 443 Pa. 29, 31, 275 A.2d 305; Commonwealth v. Commander, 436 Pa. 532, 538, 260 A.2d 773 (1970); Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580 (1969).
It is equally axiomatic that in reviewing the evidence we must do so in a light most favorable to the verdict winner, in this instance the Commonwealth. Commonwealth v. Cimaszewski, 447 Pa. 141, 143, 288 A.2d 805 (1972); Commonwealth v. Rankin, 441 Pa. 401, 404, 272 A.2d 886 (1971); Commonwealth v. Gray, 441 Pa. 91, 94, 271 A.2d 486 (1970); Commonwealth v. Simpson, 436 Pa. 459, 463, 260 A.2d 751 (1970); Commonwealth v. Culbreath, 439 Pa. 21, 24, 264 A.2d 643 (1970); Commonwealth v. Kravitz, 400 Pa. 198, 202, 161 A.2d 861 (1960).
The Commonwealth's evidence tended to establish that the mother of the deceased on October 6, 1970, resided with the appellee and Jeffrey. She further testified that she left the apartment at 5:30 a.m. at which time Jeffrey was awake and apparently well. The appellee had sole custody of the child from the time the mother departed and was responsible for the child's care and supervision until her return. At about 9:00
a.m. that morning the appellee took the child to the office of a physician with the complaint that the child had fallen on the steps and apparently hurt himself. Since the particular physician was not in at the time the appellee was directed to a hospital where the doctor could be found at 11:00 a.m. The child was received in the hospital at 11:30 a.m. and pronounced dead at approximately 12 noon. Dr. Doyle, who was the treating physician at the hospital and also the doctor that the appellee was looking for earlier that morning, testified that he first saw the deceased at 11:30 a.m. at which time the patient was receiving artificial respiration and a cardiac massage. He ...