No. 261 January Term, 1974, Appeal from Judgment of Sentence Imposed January 3, 1974, of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at No. 484 June Term, 1972
John C. Anderson, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix, J., concurs in the result.
Appellant, Ricardo Mayberry, was tried by a judge sitting with a jury and was found guilty of murder of the first degree and firearms violation. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction and sentence was suspended on the firearms violation. No appeal was taken to Superior Court from the firearms judgment of sentence. A direct appeal was taken to this court from the judgment of sentence entered on the murder conviction.*fn1
Appellant first argues that the evidence was insufficient to sustain his conviction of 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 articulated our test of sufficiency of the evidence:
"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.)
Reviewing the evidence in the above light, the facts are as follows. Appellant and the victim, Theodore Willis, were members of rival Philadelphia gangs. Approximately one week prior to the incident involved in this appeal, appellant was wounded. He believed that Willis was the person who fired the shotgun that wounded him. On April 11, 1972, appellant was informed that Willis and some companions were in the vicinity and he proceeded to confront Willis. Appellant was joined by another person, nicknamed "Solo", who handed appellant a gun. As appellant and Solo approached Willis and his companions, a shot was fired in the direction of appellant. There is no indication of where the shot was fired from or who fired the shot. Appellant then drew his gun and fired two shots which struck Willis. As a result of the gunshot wounds, Theodore Willis died on April 19, 1972.
The above evidence, when viewed in the light most favorable to the Commonwealth is sufficient to sustain the finding that appellant's shooting was "willful, deliberate and premeditated" and thereby constituted murder of the first degree. See ...