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COMMONWEALTH PENNSYLVANIA v. RICHARD SMITH (03/14/79)

decided: March 14, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD SMITH, APPELLANT



No. 165 January Term, 1977, Appeal from Order entered by the Court of Common Pleas, Criminal Trial Division of Philadelphia at No. 829 June Term, 1973

COUNSEL

Charlotte A. Nichols, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Marrianne Cox, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.

Author: Eagen

[ 484 Pa. Page 73]

OPINION OF THE COURT

On August 2, 1976, Richard Smith, appellant, was convicted in a non-jury trial*fn1 of voluntary manslaughter, assault and battery, carrying a firearm on a public street, and carrying a firearm without a license. Post-verdict motions were denied, and Smith was sentenced to ten years probation on the voluntary manslaughter conviction. A sentence of two days less than one year to one day less than two years was imposed on the weapons conviction, and sentence was suspended on the assault and battery conviction. This appeal is from the order imposing ten years probation on the voluntary manslaughter conviction.*fn2

The sole issue is whether the evidence presented at trial is sufficient to support the verdict of voluntary manslaughter or whether, on the contrary, it establishes the killing was committed in self-defense.

In evaluating the sufficiency of the evidence, the test is whether, viewing the entire record in the light most favorable to the Commonwealth and drawing all reasonable

[ 484 Pa. Page 74]

    inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976); Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976). Furthermore, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978); Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975). Viewed in this light, the instant record reveals the following:

On the evening of May 30, 1973, Smith went to the apartment of his estranged common law wife, Doris Young. At the time, Young, her boyfriend Dennis Dorsey, her son, and her brother were present in the apartment. Smith knocked on the apartment door and requested to talk with Young. Young recognized Smith's voice and, without opening the door, responded she was leaving by the back door to talk to him. Dorsey urged Young not to leave the apartment and, in vile language, refused Smith admittance to the apartment. Momentarily, Smith kicked in a panel of the door and fired three or four gun shots into the apartment. One of the shots struck Dorsey causing a fatal wound. After the shooting ceased, Young's brother exited the apartment and called the police. Smith then entered the apartment and struck Young on the head with his gun. Young subsequently required two or three sutures as treatment for the head wound which resulted from the impact of the gun. Shortly after striking Young, Smith exited the apartment.

At the time of the shooting, the victim also had a gun in his hand. Dorsey held the gun at his side as he talked to Smith through the closed door and did not directly point the gun at ...


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