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decided: May 13, 1975.



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.

Author: Jones

[ 461 Pa. Page 570]


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

[ 461 Pa. Page 571]

    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

[ 461 Pa. Page 572]

    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 from the evidence, the Commonwealth failed to meet its burden.

It is doubtful that any reasonable interpretation of the Commonwealth witnesses' testimony lends support to a finding of self-defense. However, even if appellant's own characterization of the events*fn4 could have established the necessary elements of self-defense, it was for the trier of fact to accept or reject appellant's version of the facts. Commonwealth v. Zapata, 447 Pa. 322, 326, 290 A.2d 114, 117 (1972). It has long been the law that, notwithstanding discrepancies in the evidence or any dissimilarity between a defendant's testimony and that of other witnesses, the trier of fact may believe all, part or none of the testimony of any witness for the

[ 461 Pa. Page 573]

Commonwealth or the defense. Commonwealth v. Ewing, 439 Pa. 88, 93, 264 A.2d 661, 663 (1970); Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970); Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963). Since it is the trier of fact's responsibility to reconcile any differences by determining who is worthy of belief, the reasonable doubt which will prevent conviction must be the fact finder's doubt and not that of an appellate court. United States v. Stirone, 311 F.2d 277, 284 (3d Cir. 1962). With this in mind, since it is clear that a finding of voluntary manslaughter could reasonably be adduced from the Commonwealth's evidence, appellant's first argument must fail.

The second assignment of error to be considered is whether the trial judge committed reversible error with reference to his rulings relating to the testimony of the Commonwealth witness, John Samuel Foster. Appellant claims that the trial judge erred in permitting the Commonwealth to plead surprise and cross-examine Foster, when Foster's testimony was not harmful to the Commonwealth's case. Further, the appellant contends that, even were cross-examination permissible to discredit Foster's initial testimony, the questioning went beyond mere discreditation and was a device to admit substantive evidence.*fn5

When the Commonwealth called Foster to the witness stand, it was to corroborate the testimony of the other eyewitnesses to the shooting by detailing appellant's role in the incident. Foster had previously given a full

[ 461 Pa. Page 574]

    signed statement to the police in which he related in detail the occurrence similar to other Commonwealth witnesses. At trial, however, Foster testified that he had not seen appellant at the 5th and Berk Street incident and that, although he had seen Thomas being shot, he had not seen appellant fire a gun. Further, Foster testified that had appellant, a friend of four years, been present at that time, he would have seen him.

It is well-settled that when one's witness turns hostile by telling a different version on the witness stand than he told the calling party prior thereto, the latter may plead surprise and request leave to cross-examine the witness and impeach him by his prior inconsistent statement. See e. g., Commonwealth v. Thomas, 459 Pa. 371, 329 A.2d 277 (1974); Commonwealth v. Bynum, 454 Pa. 9, 309 A.2d 545 (1973); Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973); Commonwealth v. Knudsen, 443 Pa. 412, 278 A.2d 881 (1971); Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957). Further, the fundamental rule in this jurisdiction is that it is within the sound discretion of the trial court to decide whether counsel may exercise the right to cross-examine the hostile witness. Commonwealth v. Thomas, supra; Commonwealth v. Dancer, supra. Recently, we have reiterated four guidelines for the trial court to follow in determining whether cross-examination is warranted. Commonwealth v. Thomas, supra. There is no question that the first and second criteria were met here, i. e., that the witness's testimony was unexpected and that the testimony was contradictory to statements made earlier. Nevertheless, there is some question whether the third and fourth criteria were met, i. e., whether the testimony was injurious to the party calling the witness and beneficial to the opposing side and whether cross-examination was limited to dispute only the unexpected adverse statements.

[ 461 Pa. Page 575]

When discussing what is deemed injurious, the courts in this jurisdiction have continued to maintain that they will be liberal in allowing a party to cross-examine his own witness when "it is believed that the interest of truth and justice so require [citations omitted]. . . . On the other hand, our courts have been loathe to allow cross-examination for purposes of impeachment by use of prior statements when a witness states that he does not know or that he cannot remember. This is so for the reason that such an in-court declaration does not harm the calling party nor aid the opposing party. [Citations omitted.] Hence, when a witness claims he does not know or cannot remember, the prior statements should not be introduced because of the danger that the prior statements will be considered as substantive evidence by the jury." Commonwealth v. Knudsen, 443 Pa. at 414-15, 278 A.2d at 882-83.

Appellant claims that, since the Commonwealth called other witnesses whose testimony established that he was at the scene of the shooting, the fact that Foster said he did not see appellant was as if he merely disclaimed any knowledge of appellant's participation in the crime. Consequently, appellant would have us believe Foster's testimony was as neutral as had he said "I do not remember." We disagree. As was stated earlier, the trier of fact may choose to believe any part of any Commonwealth witness's statement. Since Foster's testimony reflects an unequivocal denial of seeing appellant and cast doubt on appellant having any role in the instant homicide, if the trial judge chose to believe Foster's testimony, appellant would indeed have benefitted. Consequently, it was not error to allow the Commonwealth to "stamp him unworthy of belief."

A review of the record reveals that the trial judge allowed cross-examination for the purpose of impeachment only specifically stating he would not consider

[ 461 Pa. Page 576]

    the former statement of Foster as substantive evidence. Yet we are disturbed by the fact that much of the witness's prior statement to police did not contradict the unexpected adverse statements made at trial. To the extent that the trial court allowed in testimony regarding the events prior to the 5th and Berk Street confrontation i. e., information not concerning appellants presence or role in the shooting death), the court was in error. Nevertheless, since the questions concerning prior events did not in any way incriminate the appellant or in any other way advance the Commonwealth's case, the error of admitting excessive testimony was harmless. See Commonwealth v. Knudsen, 443 Pa. at 415, 278 A.2d at 883; Commonwealth v. Linkowski, 363 Pa. 420, 424, 70 A.2d 278, 280 (1950). See also Commonwealth v. Thomas, 459 Pa. at 383-384, 329 A.2d at 283; Commonwealth v. Dancer, 452 Pa. at 227, 305 A.2d at 364.

Appellant's third and last assignment of error was that the evidence presented at trial was not sufficient to find the intent to unlawfully and maliciously injure another as required to convict one of carrying a concealed deadly weapon. This argument is meritless. The Commonwealth not only presented eyewitness evidence establishing that appellant both concealed and fired a .22 caliber pistol, through appellant's own testimony the Commonwealth established that on the afternoon of the day of the shooting, appellant purchased a pistol for what he claimed was "no reason." Appellant further admitted that he withdrew this pistol from his pocket while running from the rival gang.

Once the Commonwealth introduced evidence that appellant carried a deadly weapon concealed upon his person, the fact finder could conclude beyond a reasonable doubt that appellant possessed the intent to unlawfully and maliciously do injury to another person from the Commonwealth's evidence that appellant had, in

[ 461 Pa. Page 577]

    fact, intentionally used this weapon upon a vital part of Thomas' body. Act June 24, 1939, P.L. 872, § 416, as amended; 18 P.S. § 4416; Commonwealth v. Townsend, 211 Pa. Super. 135, 235 A.2d 461 (1967); Commonwealth v. Festa, 156 Pa. Super. 329, 40 A.2d 112 (1945). See also Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973); Commonwealth v. Minoff, 363 Pa. 287, 69 A.2d 145 (1950).

The judgment of sentence is affirmed.

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