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COMMONWEALTH PENNSYLVANIA v. EMMANUEL WHACK (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
EMMANUEL WHACK, APPELLANT (TWO CASES)



No. 540 January Term, 1976 No. 72 January Term, 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Informations Nos. 315 and 316, February Term, 1976.

COUNSEL

John J. McAuliffe, Jr., Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., William C. Turnoff, Philadelphia, Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino, and Larsen, JJ. Manderino, J., concurs in the result.

Author: Nix

[ 482 Pa. Page 139]

OPINION OF THE COURT

Appellant was convicted in a non jury trial of murder of the third degree and of possession of an instrument of crime. After the dismissal of post-trial motions, a term of imprisonment of three and one-half to 15 years was imposed under the murder information and a prison sentence of two and one-half to five years was imposed under the instrument of crime information. The said sentences were made to run concurrently. This direct appeal followed.*fn1

On November 22, 1975 at approximately 6 p. m. a fight erupted in a bar located in the Germantown section of Philadelphia. This altercation was between the deceased and another patron of the bar who was identified as "Ted". The fight lasted for a brief period during which several chairs and pool balls were thrown about by the parties. Harry L. Newell, an occupant of the bar, testified on behalf of the Commonwealth that appellant, who was present and had been watching the altercation removed a knife from his pocket and stabbed the deceased one time. Further testimony for the Commonwealth was introduced to show that death was caused by a single stab wound.

[ 482 Pa. Page 140]

Appellant's first two assignments of error raised the same issue, to wit whether the Commonwealth's evidence was sufficient as a matter of law to sustain the verdicts. We have often had occasion to state that the test for the sufficiency of the evidence requires an acceptance of the evidence presented by the verdict winner in its most favorable light and the reasonable inferences that can properly be drawn therefrom. Commonwealth v. Paquette, 451 Pa. 250, 253, 301 A.2d 837, 838-39 (1973); Commonwealth v. Eiland, 450 Pa. 566, 569, 301 A.2d 651, 652 (1973); Commonwealth v. Williams, 450 Pa. 327, 329, 301 A.2d 867, 869 (1973); Commonwealth v. Oates, 448 Pa. 486, 489, 295 A.2d 337, 338 (1972). The testimony of the witness Newell clearly satisfies the sufficiency test provided that evidence was competent and properly admitted.

The gist of appellant's argument is that Newell's testimony should have been rejected because it was contradicted by other witnesses and a prior inconsistent statement made by Newell himself. The problem with this position is that these facts affect the credibility of the witness, Newell, and not his competency to testify. It is a basic tenet of our system of jurisprudence that issues of credibility are properly left to the trier of fact for resolution. Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1976); Commonwealth v. Hampton, 462 Pa. 322, 326, 341 A.2d 101, 103 (1975); Commonwealth v. Murray, 460 Pa. 605, 609, 334 A.2d 255, 257 (1975); Commonwealth v. Oates, 448 Pa. 486, 490, 295 A.2d 337, 338 (1972); Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). We have indicated that there may be instances where the source of the evidence of guilt may be so unreliable and/or contradictory that a reviewing court might be required to overturn a conviction predicated upon such evidence. See Commonwealth v. Farquharson, supra. However, that rule only applies in such cases where the patent unreliability of the testimony is such as to render a verdict of guilt based thereupon as no more than pure conjecture. Commonwealth v. Farquharson, supra. See also Commonwealth v. Bennett, 224 Pa. Super. 238,

[ 482 Pa. Page 141303]

A.2d 220 (1973). We do not believe that the testimony offered by Mr. Newell in this case can be properly characterized as being "so contradictory and fantastic as to be incredible . . ." Commonwealth v. ...


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