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COMMONWEALTH PENNSYLVANIA v. KEVIN HOLMES (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
KEVIN HOLMES, APPELLANT (TWO CASES)



Nos. 411 & 418 January Term, 1976, Appeals from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia at Nos. 2737-2740 November Term, 1975

COUNSEL

Stanley Bashman, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Glen S. Gitomer, Philadelphia, for appellee.

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

Author: Eagen

[ 482 Pa. Page 101]

OPINION OF THE COURT

Kevin Holmes was convicted in a non-jury trial in Philadelphia of murder of the third degree, aggravated assault, robbery, and conspiracy. Post-verdict motions were denied and concurrent judgments of sentence of not less than two nor more than ten years imprisonment on each indictment were imposed. These appeals followed.*fn1

Appellant challenges the sufficiency of the evidence to sustain the convictions.

"The test of sufficiency of the evidence is whether, accepting as true all the evidence and reasonable inferences therefrom, upon which, if believed, the factfinder could properly have based its 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. Hamm, 474 Pa. 487, 494, 378 A.2d 1219, 1222 (1977). Further, we must consider the evidence in the

[ 482 Pa. Page 102]

    light most favorable to the Commonwealth. Commonwealth v. Hamm, supra; Commonwealth v. Bryant, 461 Pa. 309, 336 A.2d 300 (1975). So viewed, the trial record discloses the following:

James Holmes, brother of appellant, and Bernard Petty entered the front door of the Hunt Room Bar at 18th and South Streets in Philadelphia on October 25, 1975, shortly after 11:30 p. m. The two proceeded to a washroom in the rear of the bar where they remained for a few minutes. When the two came out of the washroom, they proceeded toward the front of the bar. As James Holmes passed a patron, Jessie Wallace, he pointed a gun at Wallace's head and said: "This is a stickup." James Holmes then seized Wallace. When several female patrons began to scream, Petty ran toward the front door. James Holmes began to pull Wallace toward the front door. He then fired a shot at Petty and turned toward Wallace, who was falling to the floor, and fired a shot at him. The first shot struck Petty; the second struck Holmes' hand and then Wallace. Both Petty and James Holmes then fled the bar.

The evidence linking appellant to the above events consisted of a statement made by him to a police officer and recorded in the handwriting of the police officer. This statement, when completed, was signed by appellant and was later introduced into evidence at trial. This statement was both exculpatory and inculpatory. But in determining the sufficiency of the evidence, we must, as previously mentioned, view the evidence in the light most favorable to the Commonwealth, Commonwealth v. Hamm, supra, and, as applied to this statement, this means we must accept only those portions which inculpate appellant and treat those portions which exculpate him as disbelieved because the factfinder could believe all, part, or none of the statement. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1977). So viewed, Holmes' statement detailed the following:

Prior to the robbery, appellant was riding in a car along with Petty, James Holmes, and Rob,*fn2 who was the driver,

[ 482 Pa. Page 103]

    when "Jimmy talks about stickin-up, robbery, and he says Kevin you go'ne in with me. And I says no I ain't go'ne in nowhere, take me home . . . . Petty [then] say, I'll go with you." Appellant knew his brother had a gun. When the car arrived at a restaurant on West Oak Lane, James Holmes and Petty left the car and entered the restaurant to "make some money." They returned to the car without doing so because the restaurant was too crowded. The four then proceeded to a friend's residence to borrow money, but the friend was not home. They then proceeded "around the corner to where the [two] bars" were located. James Holmes entered one of the bars by himself "to see if [he could] get some money . . . ." He came back out and Petty then entered with him. They remained in the bar for five minutes and then returned to the car. Either Petty or James Holmes then remarked: "We gonna take this other bar across the street." They entered that bar and the attempted robbery and shooting, previously related, took place.

When Petty and James Holmes returned to the car, James Holmes told appellant to "break the car light," but he refused. Rob then told appellant to "break" the car lights and he did so. The four then proceeded to 18th and Montgomery where James Holmes got out of the car. The remaining three went to a hospital where Petty and appellant entered. Rob departed in the car. Later, appellant was informed by someone at the hospital that Petty was dead.

Appellant also said in the statement that James Holmes' only explanation for shooting Petty was: "That m___ f___ coward, I might of shot him." When asked, "Why did you go along," appellant said in the statement ". . . one reason was I was scared of Jimmy, and the other reason was if we got some money I was gonna get some and if he got the money he was gonna get a coat for us."

Appellant does not dispute the sufficiency of the evidence to establish that James Holmes and Bernard Petty entered the bar at 18th and South Streets at 11:45 p. m. on October 25, ...


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