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COMMONWEALTH PENNSYLVANIA v. LOUIS SMITH (06/01/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 1, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
LOUIS SMITH, APPELLANT

No. 44 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 983 and 984 July Term, 1976.

COUNSEL

Mitchell S. Lipschutz, Philadelphia, for appellant.

Ronald Castille, Assistant District Attorney, Philadelphia, for Com., appellee.

Cercone, President Judge, and Roberts and Lipez, JJ.*fn*

Author: Per Curiam

[ 266 Pa. Super. Page 502]

Appellant was convicted, after a non-jury trial, of murder in the third degree and possession of a prohibited offensive weapon. He was sentenced to a prison term of eight to twenty years on the murder conviction, and three years probation on the weapons offense to run consecutively.

Appellant raises five assignments of error, all of which save sufficiency of the evidence have been waived by his failure to state them specifically in post-trial motions. Commonwealth v. Hagans, 483 Pa. 415, 397 A.2d 412 (1979); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Pa.R.Crim.P. 1123(a).

[ 266 Pa. Super. Page 503]

Appellant asserts that the Commonwealth's evidence was "devoid of credibility." It is, however, for the trier of fact to decide the issue of credibility, Commonwealth Page 503} v. London, 461 Pa. 566, 572, 337 A.2d 549, 552 (1975), and the trial court obviously chose to believe the Commonwealth's version of the facts. The evidence, viewed most favorably to the Commonwealth, see Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975), shows that at approximately 7:15 P.M., on June 30, 1976, appellant, carrying a leather case containing a shotgun, approached the victim, who was sitting at the corner of Fifteenth and South Streets in Philadelphia. Appellant fired the weapon at the victim, striking him in the head and neck and thereby causing his death. The evidence is clearly sufficient to support the verdict.


*fn* Justice Samuel J. Roberts of the Supreme Court of Pennsylvania and Judge Abraham H. Lipez of the Court of Common Pleas of Clinton County, Pennsylvania, are sitting by designation.


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