No. 784 January Term, 1977. No. 99 January Term, 1978, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 1653 and 1654 March Term, 1974.
David Cohen, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Gaele McLaughlin Barthold, Asst. Dist. Attys., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Eagen, C. J., and Roberts, J., concur in the result.
Appellant, John Wilcox, was convicted in the Court of Common Pleas of Philadelphia of murder of the second degree and possession of an instrument of crime. He was sentenced to imprisonment for ten to twenty years for the murder conviction and two to four years for possession of an instrument of crime, the sentences to run concurrently. He appealed the judgment of sentence for murder to this court and appealed the judgment for possession of an instrument of crime to the Superior Court, which certified the appeal to this court. While the case was initially pending before us, a witness, Leroy Smith, who identified appellant at trial, executed an affidavit in which he recanted his testimony. On May 10, 1977, we remanded the case to the trial court for a ruling on whether the recantation entitled appellant to a new trial. The court held that it did not. Appellant appealed that ruling to this court. The issues raised in the original appeal remain before us.
Appellant first argues that the evidence is insufficient to sustain the verdict. In Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975), we set forth the applicable standard of review. We stated that:
"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.)
We will review the evidence in the above light.
On December 24, 1973, at approximately 10:00 p.m., Samuel Mack, accompanied by Leroy Smith and Kevin Jackson, was walking in the vicinity of the intersection of Broad Street and Girard Avenue in Philadelphia. Four assailants attacked Mack, one of them inflicting a fatal stab wound in the chest. The assailants immediately fled. Smith and Jackson began to give ...