No. 324 January Term, 1976, Appeal from the Judgment of Sentence of February 9, 1976, of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at No. 764 February Term, 1975
Samuel Kagle, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Charles A. Klein, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy, J., joins in this opinion and also files a concurring opinion. Roberts, Nix and Manderino, JJ., concur in the result. Packel, J., took no part in the decision of this case.
Appellant, William Fultz, was tried by a judge sitting with a jury and was convicted of murder of the first degree. Post-verdict motions were denied and appellant was sentenced to life imprisonment. This appeal followed.
The facts are as follows. At approximately 9:00 p. m. on December 12, 1974, Maryann O'Bryant was walking in the 3100 block of West Page Street, Philadelphia. She saw Gary Johnson walk to the corner of 32nd and West Page and look around. Immediately thereafter, she and her companions met appellant and Calvin Martin. At the time, O'Bryant saw a brown wooden object under appellant's jacket. Martin
and appellant then walked in the direction of 3125 West Page Street.
Joanne Cox, who lived at 3125 West Page Street, testified that around 9:00 p. m., she was in her house talking to Jonathan Kent, the victim, when Edgar Greenwood entered. Greenwood walked into the kitchen and told Cox he would like to speak with her privately. He asked Cox about her relationship with the victim, Jonathan Kent, and she replied that they were good friends. Cox asked Greenwood why he wanted to know and Greenwood replied that she would soon be dating him (Greenwood). When Cox and Greenwood re-entered the livingroom, Kent left the house through the front door. While on the porch, Kent was shot and killed by assailants using a shotgun and a .38 caliber pistol. When the shooting occurred, Greenwood ran out the backdoor of the Cox house.
After the shots were fired, O'Bryant saw appellant with Martin and Johnson running on Page Street. She noticed Johnson throwing away a pistol and appellant discarding a shotgun. The handle of the shotgun was the same color as the brown object O'Bryant had seen under appellant's coat. Appellant, Martin and Johnson got in an automobile and drove away.
Appellant argues first that the evidence was insufficient to sustain his conviction for murder of the first degree. We do not agree.
In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975), we stated:
"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. . . . The fact-finder
is free to believe all, part, or none of the evidence. . . ." (Citations omitted.)
In light of this standard, we believe the evidence was sufficient to prove beyond a reasonable doubt that appellant was guilty of murder of the first degree. Act of December 6, 1972, P.L. 1482, No. 334, § 1, as amended March 26, 1974, P.L. 213, No. 46, § 4, 18 Pa.C.S.A. § 2502.
Following trial, appellant's trial counsel filed boiler plate post-verdict motions challenging only the sufficiency of the evidence. Counsel attempted to raise other issues, but the trial court properly refused to consider them because of Pa.R.Crim.P. 1123(a) and our decision in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). On appeal, appellant is represented by different counsel and now challenges trial counsel's effectiveness. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Appellant's allegations of his trial counsel's incompetence deal with the failure to include certain allegations of error in written post-verdict motions.
In Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974), this court held that counsel is not ineffective for failing to raise baseless or frivolous issues. With this standard in mind, we will discuss appellant's claims concerning his trial counsel's effectiveness.
Appellant argues that trial counsel was ineffective for failing to include in written post-verdict motions an objection to the alleged hearsay of certain portions of Cox's trial testimony. The questioned evidence involves Cox's testimony about the conversation between Greenwood and herself in the kitchen of her home. As previously stated, Cox testified that Greenwood asked about her relationship with Kent and then announced that she would soon ...