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COMMONWEALTH v. SMITH (10/16/74)

October 16, 1974

COMMONWEALTH
v.
SMITH, APPELLANT.



Appeal, No. 24, May T., 1974, from judgment of sentence of Court of Common Pleas of Dauphin County, 640 No. 1259 of 1972, in case of Commonwealth of Pennsylvania v. William Von Smith. Judgment of sentence affirmed.

COUNSEL

Charles O. Barto, Jr., Assistant Public Defender, for appellant.

Wallace B. Eldridge, III, Assistant District Attorney, with him Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Before Jones, C.j., Eagen, O'brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 457 Pa. Page 640]

OPINION BY MR. JUSTICE ROBERTS.

Following a joint trial by jury, appellant and a co-defendant were found guilty of murder in the first degree and sentenced to life imprisonment. On this direct appeal from the judgment of sentence,*fn1 appellant attacks the sufficiency of the evidence and challenges three rulings by the court during trial. Finding appellant's contentions unpersuasive, we affirm.

The Commonwealth's evidence established that on January 15, 1972, George Fautz, a barber, was brutally beaten and robbed in his Harrisburg shop. Later that day, appellant on two separate occasions discussed the incident with friends. He told them that he entered the shop, asked if Fautz was hiring any barbers, and upon receiving a negative answer repeatedly struck the deceased with an eighteen-inch club he was carrying

[ 457 Pa. Page 641]

    on his person, and robbed him. On the first of these occasions, appellant showed a witness a wallet containing about $60.00.

The victim, who died four days later as the result of a skull fracture and massive hemorrhaging of the brain, stated before his death that two men entered his shop and asked if he was hiring. He told them that he was not, turned, and later awoke to discover that his wallet, which contained about $60.00, was missing. Fautz's description of his assailants matched the defendants. The victim's statements were admitted at trial as hearsay exceptions, see Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968), and their admission is not here challenged.

Appellant testified at trial that he was present in the barbershop, but that he neither struck nor robbed the deceased. His defense was a denial of guilt and an attack on the credibility of Commonwealth witnesses. Presently appellant maintains that his denials should have been believed, the testimony of Commonwealth witnesses discredited, and a reasonable doubt as to his guilt raised in the minds of the jurors. We cannot agree.

"[It] is the exclusive province of the trier of facts' to pass upon the credibility of witnesses and the weight to be accorded their testimony." Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). And the factfinder "can believe all, part or none of the evidence presented." Commonwealth v. Williams, 450 Pa. 158, 162, 299 A.2d 643, 645 (1973). Here the jury, as was its ...


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