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COMMONWEALTH PENNSYLVANIA v. EDWARD COOKE (06/13/79)

decided: June 13, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD COOKE, APPELLANT



No. 4 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, Indictment No. 121, August Term, 1976.

COUNSEL

Steven Dickstein, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 267 Pa. Super. Page 37]

After a non-jury trial, the lower court convicted appellant of murder in the third degree. In this direct appeal, appellant contends that (1) the Commonwealth did not prove that he caused the victim's death, (2) the verdict was contrary to the weight of the evidence, (3) his trial counsel was ineffective for not producing a witness critical to his defense, and (4) the lower court erred in admitting evidence of his 1973 burglary conviction. We conclude that all of appellant's contentions lack merit and, accordingly, affirm the judgment of sentence.

Viewed in the light most favorable to the Commonwealth, Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976), the following evidence was adduced at appellant's trial: On June 6, 1976, at a baseball field in Philadelphia, appellant struck the victim, Jerome Skowronski, over the head with a wooden baseball bat. Skowronski was immediately transported by his friends to a hospital, where he died one and one-half days later of multiple craniocerebral injuries. Skowronski and appellant were among a group of people at the field for several hours watching and playing softball and consuming beer. Ms. Connie Walvatne, Skowronski's fiancee, testified that Skowronski was initially punched after several people admonished him for bringing a gun to the field. She stated that she was the owner of a gun which was in the trunk of her car 15 minutes before Skowronski

[ 267 Pa. Super. Page 38]

    was first hit. Police officers testified that appellant admitted that he had struck Skowronski once over the head with a baseball bat from behind after John McFarland hit Skowronski in the face with a beer mug. Appellant further admitted that he struck Skowronski because someone told him Skowronski had a gun and because he thought Skowronski was going to shoot someone. Appellant never saw the gun. Two witnesses for appellant testified that they saw Skowronski reach for his waist after being struck by McFarland and then saw appellant strike him from behind with the bat. A third witness for appellant stated that he warned the crowd that Skowronski was "going for a gun", although he did not see the gun. Neither appellant nor his witnesses saw Skowronski with a gun during the fight and no one heard Skowronski make any kind of threat against anyone.

Appellant attempted to show that McFarland's blow to Skowronski with a beer mug caused Skowronski's death. However, the cause of death according to the medical examiner was "multiple craniocerebral injuries of the brain and injuries to the skull." Appellant's own statement indicated that McFarland hit Skowronski in the face with the mug and appellant hit him in the head with the bat. Several other witnesses testified to appellant's striking Skowronski in the head with the bat. We conclude from all the above evidence that the Commonwealth proved appellant caused Skowronski's death beyond a reasonable doubt. See Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734 (1972).

Appellant next contends that the verdict is contrary to the weight of the evidence. Appellant claimed that he was justified in his actions on the basis of 18 Pa.C.S.A. § 506: use of force for protection of other persons. Credibility of witnesses is for the factfinder. Commonwealth v. Nau, 473 Pa. 1, 373 A.2d 449 (1977). In the instant case, the trial judge, the factfinder, indicated that he did not believe Skowronski had been the aggressor or had given anyone reason to believe that he was putting anyone in imminent danger of death or serious bodily injury. Moreover, Walvatne

[ 267 Pa. Super. Page 39]

    testified that Skowronski did not have the gun on his person at the time of the attack. Accordingly, our review reveals no reason ...


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