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COMMONWEALTH v. YOUNG (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
YOUNG, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1972, No. 110, in case of Commonwealth of Pennsylvania v. Leon Young.

COUNSEL

Marshall E. Kresman, with him Lewis A. Walder, for appellant.

Maxine J. Stotland, Assistant District Attorney, with her Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Spaeth, J., concurs in the result. Dissenting Opinion by Hoffman, J. Jacobs, J., joins in this dissenting opinion.

Author: Price

[ 233 Pa. Super. Page 431]

This case comes before the court on direct appeal from convictions for aggravated assault and battery, assault and battery with intent to murder, and forcible entry. Appellant alleges four errors. Since they are all without merit, we affirm the judgment of the lower court.

The facts as revealed by the record indicate that in the early morning hours of August 22, 1972, appellant and three others, Leon Kelsey, Ricky Kelsey, and David Warren, forcibly broke into an apartment occupied at that

[ 233 Pa. Super. Page 432]

    time by Ronald Williams. Leon Kelsey pointed a gun at Williams and demanded that Williams surrender a stereo which they asserted he had stolen from the Kelseys' home. A search for the stereo proved fruitless.

Still allegedly searching for the stereo, they then ordered Williams to accompany them to a house where Williams had been during the day, and questioned the woman living there about the time of his arrival and departure. After the questioning, the five men left the house. Williams, appellant, Leon Kelsey, and David Warren remained in front of the house while Ricky Kelsey left the group and entered his own home nearby.

Ricky Kelsey reappeared several minutes later and moved across the street behind Williams. At this time, Leon Kelsey was leaning against a tree facing Williams, while appellant and David Warren were standing in front of Williams, also facing him. Just before the shot was fired, appellant and Warren dropped to the ground in a prone position, indicating they knew what was about to happen. As the bullet struck Williams in the back, he was spun around, and he saw Ricky Kelsey coming across the street with the gun in his hand. Williams then crawled under a car and began to shout for help. Appellant and his accomplices panicked and fled together.

Appellant alleges that the evidence taken as a whole failed to demonstrate beyond a reasonable doubt appellant's guilt of the crimes charged. In testing the sufficiency of the evidence, we must review the testimony in a light most favorable to the verdict winner. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Portalatin, 223 Pa. Superior Ct. 33, 297 A.2d 144 (1972). In so doing, we will accept as true the Commonwealth's evidence and all reasonable inferences arising therefrom. Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970). The test of the sufficiency of the evidence is whether, accepting as true all evidence, regardless of whether it is direct or circumstantial, upon

[ 233 Pa. Super. Page 433]

    which, if believed, the fact-finder could properly have based his verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 ...


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