F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, Philadelphia, for appellant.
Michael A. Seidman, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case.
Appellee, Julius A. Davis, was found guilty in a non-jury trial of murder in the third degree, criminal conspiracy, possession of an instrument of crime generally, and possession of a prohibited offensive weapon. Post-verdict motions for a new trial and in arrest of judgment were filed. The trial court did not consider the motion for a new trial but granted appellee's motion in arrest of judgment concluding that the evidence was insufficient. The prosecution appealed to this Court from the order arresting judgment of appellee's murder conviction. Appeals involving the other crimes were taken by the prosecution to the Superior Court and certified to this Court.
Both the prosecution and appellee agree that on the issue of the sufficiency of the evidence, the evidence, and all reasonable inferences arising therefrom, must be viewed in the light most favorable to the verdict winner. The effect of a motion in arrest of judgment is to admit all the facts which the prosecution's evidence tends to prove. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974); Commonwealth v. Terenda, 433 Pa. 519, 252 A.2d 635 (1969).
The parties disagree, however, as to whether the evidence is sufficient or insufficient. We hold that the trial court erred in concluding that the evidence was insufficient to support the convictions. The relevant portions of the trial court's opinion are as follows:
"The homicide in question occurred about 10:00 P.M., Friday, April 18, 1975, on the street in front of 3212-A McMichael Street, Philadelphia, an address in a public housing project. James Sturgis, the victim, was one of a group of persons who had been helping his cousin, Mason
Herndon, move his household goods from one apartment to another. The others in the group were Mason's brother, Floyd Herndon, Jr., his father, Floyd, Sr., and a juvenile member, a young girl whom the adults were delivering back to her own home, the McMichael Street address, in an automobile driven by Mason Herndon. Mason's age was 30, Floyd, Jr.'s 26, their father's 59. The occasion was semi-social; some drinking had been done. Post-mortem examination showed the victim to have been plainly drunk, and Mason Herndon admitted that he had had some drinks. He was also carrying an ordinary pocket knife for use in cutting cords or rope incident to his moving. Herndon's brother Floyd was inside the house to which the young girl was being delivered when Mason Herndon was accosted by a youth, identified in the testimony as 'Scottie' or Michael Scott, who approached his car and demanded to know what gang Herndon was from. Disclaimer by Herndon of any gang membership or affiliation was unavailing, young Scott contradicted his denials, the passengers in the car got out, and Scott yelled the rallying or war-cry 'Yo Yo.' which brought ten or a dozen of his supporters on the run out of nowhere to surround the Herndon party and car. Mason Herndon pulled his pocket knife, and was quickly knocked down, from which he was dazed some few minutes. A general altercation broke out and Herndon testified, as his senses cleared, he heard shots. The attacking gang ran away, and Sturgis was found on the ground expiring from a bullet wound in the back.
"None of the eyewitnesses were able to identify the person or persons doing the shooting, but there was agreement among several that more than one shot was fired, Mason Herndon testified they sounded as if coming from more than one gun, he saw a male figure using both hands to hold a handgun, and another eyewitness, Dickerson, saw someone in the band of ...