George T. Guarnieri, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Suzanne Balen Ercole, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty., for Law, Deborah Glass, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., concurs in the result.
On February 19, 1971, the appellant, Willie London, was convicted in a non-jury trial of voluntary manslaughter, carrying a concealed deadly weapon and violation of the Uniform Firearms Act. Shortly thereafter post-trial motions were heard and denied. Appellant was sentenced to a term of imprisonment from one to ten years on the homicide charge and sentence was suspended on the weapons charges.*fn1 In this direct appeal,*fn2 appellant advances three grounds for reversal. We find appellant's arguments cannot be sustained, and therefore affirm.
Appellant's first assignment of error is that the evidence presented at trial was insufficient to support
a conviction of voluntary manslaughter. In reviewing the evidence in homicide cases, it is well-settled that the test of sufficiency is "whether, accepting as true all of the evidence, be it direct or circumstantial, and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based the verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted." Commonwealth v. Malone, 444 Pa. 397, 398, 281 A.2d 866, 867 (1971). See also Commonwealth v. Johnson, 458 Pa. 23, 326 A.2d 315 (1974); Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973); Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). It is also axiomatic that the evidence must be viewed in the light most favorable to the verdict winner. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971). Reviewing the evidence presented at trial in light of the aforementioned principles, we are satisfied that there was sufficient evidence to sustain London's conviction of voluntary manslaughter.*fn3
The instant shooting occurred in the mid-evening of August 20, 1970, at the corner of 5th and Berk Streets during an altercation between two rival gangs. The Commonwealth, relying on the testimony of several eyewitnesses, police officers and the recorded statement of the victim, was able to show that during the course of a fist-fight between appellant, a member of the "Montgomery Street" gang, and Frank Thomas, a former member of the "Oxford Street" gang, the appellant pushed the deceased away, "backed off" a number of feet (anywhere
from five to ten) and reached into his waist for a gun. At that point, the Commonwealth alleges the appellant, with an outstretched hand, fired two or three times into a crowd of rival gang members. One of these shots mortally wounded Thomas. Although there was some question as to whether appellant had at some point earlier fallen to the ground and fired his weapon while attempting to get up, there was no evidence that appellant was knocked down by the deceased or that the deceased was in any way the aggressor. Further, there was a post-mortem report and sufficient eyewitness testimony supporting the Commonwealth's contention that appellant was standing facing the unarmed victim when he fired the fatal bullet.
Appellant admits that the testimony of one eyewitness, if believed, would support the finding of intentional killing. Nevertheless, appellant argues that, since the inference of self-defense or accidental shooting could also reasonably be drawn ...