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COMMONWEALTH PENNSYLVANIA v. STEPHEN KWATKOSKI (06/29/79)

decided: June 29, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
STEPHEN KWATKOSKI, APPELLANT



No. 2356 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal Division, No. 5138 October Term, 1975.

COUNSEL

Malcolm M. Limongelli, First Assistant Public Defender, Norristown, for appellant.

Patrick J. Toole, Jr., District Attorney, for Commonwealth, appellee.

Price, Hester and Hoffman, JJ.

Author: Price

[ 267 Pa. Super. Page 404]

Following a jury trial, appellant was convicted on May 19, 1976, of tampering with a witness,*fn1 and criminal conspiracy.*fn2 Post-trial motions were denied, and appellant was sentenced to four (4) years probation and ordered to pay the costs of prosecution. Appellant now alleges that the court below erred in several respects. Finding no merit in these contentions, we affirm the judgment of sentence.

Appellant first argues that the evidence was insufficient to sustain a conviction for either tampering with a witness or criminal conspiracy. It is well settled that when confronted with a question involving the sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the verdict winner. Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978); Commonwealth v. Warren, 475 Pa. 31, 379 A.2d 561 (1977). Reviewing the evidence in this manner, the following facts were adduced at trial.

On June 6, 1975, a subpoena was issued to Mr. and Mrs. Michael Shemar ordering them to appear for a hearing concerning allegedly illegal ballots entered for a Mr. Bruno Petrillo in a councilman's election in the 11th Ward, Borough of Norristown.*fn3 Approximately one hour after the subpoena

[ 267 Pa. Super. Page 405]

    had been delivered to the Shemar's residence, appellant presented himself at their front door. Michael Shemar answered the door and admitted appellant, although neither Mr. Shemar nor his wife knew him personally. Upon entering appellant asked Mrs. Shemar if he had been issued a subpoena. The latter responded affirmatively and queried appellant as to how he acquired this information. Appellant merely replied that, "You don't have to worry about it." During the ensuing two hour discussion with both Mr. and Mrs. Shemar, appellant stated that the subpoena would be taken care of, and Mr. Shemar would not have to appear in court; a possibility which concerned Mrs. Shemar because of her husband's recent poor health. Nevertheless, appellant continued, in the event that the Shemars were forced to appear in court, they should "fabricate" a story concerning the day in question; telling "them" that they were away at the time, at an in-laws' anniversary or the like.*fn4 Mrs. Shemar retorted that she couldn't lie because she was working that day. Both Mr. and Mrs. Shemar acknowledged being acquainted with Mr. Petrillo, but appellant answered in the negative when asked if Mr. Petrillo had sent him to the Shemars.

In determining whether the evidence produced is sufficient to support a conviction, the test to be applied is whether, accepting as true all evidence and all reasonable inferences therefrom on which if believed the fact finder could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime charged. Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977); Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976); Commonwealth v. Deeters, 255 Pa. Super. 343, 386 A.2d 1034 (1978). Nevertheless, guilt must be

[ 267 Pa. Super. Page 406]

    proved and not conjectured; the reasonable inference of guilt must be based on facts and conditions proved, not solely on suspicion or surmise. Commonwealth v. Holguin, 254 Pa. Super. 295, 385 A.2d 1346 (1978); Commonwealth v. Navarro, 251 Pa. Super. 125, 380 A.2d 409 (1977). Instantly, we have little difficulty in deciding that sufficient evidence was adduced to ...


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