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submitted: July 17, 1979.


Nos. 203 and 204 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division Criminal Section of Philadelphia County, Imposed on Indictment Nos. 816 and 818 April Term, 1977.


Robert B. Mozenter, Philadelphia, for appellant.

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

Wieand, Nix and Wekselman, JJ.*fn*

Author: Wieand

[ 269 Pa. Super. Page 406]

On the evening of January 25, 1977, appellant, Jerome Kennerly, was engaged in a heated argument with D'Armon Davis at the intersection of Greene Street and Chelten Avenue in Philadelphia. The argument erupted sporadically into fisticuffs, but all fighting ceased when a police vehicle approached and passed. The police officers, having observed the scuffle, drove around the block and, at or about 7:08 o'clock, P.M. as they made a second approach, observed the two men still making threatening gestures toward one another. The argument again seemed to stop, however, when the two men observed the approach of the police car. On this occasion, the police officers proceeded a short distance beyond the parties when one officer heard a noise which sounded like a gunshot. He immediately turned around and saw Davis stumbling toward the police car and appellant running in the opposite direction. Davis died as a result of a gunshot wound which had penetrated the heart and lung. In April, appellant turned himself in to police authorities. He was tried by jury and convicted of third degree murder and possession of an instrument of crime. After post-verdict motions had been denied and sentence imposed, an appeal was taken to this court. We affirm.

Appellant contends initially that the evidence was insufficient to convict him of murder in the third degree. He argues that the Commonwealth's witnesses were "incredible", and that no eyewitnesses observed the shooting. There is no merit in this argument. A determination of the credibility of witnesses is within the sole province of the

[ 269 Pa. Super. Page 407]

    trier of fact; it is not the function of an appellate court to make such a determination. See: Commonwealth v. Christina, 481 Pa. 44, 391 A.2d 1307 (1978); Commonwealth v. Farguharson, 467 Pa. 50, 354 A.2d 545 (1976). Secondly, the fact that no one actually saw appellant fire the fatal shot does not render the evidence insufficient. The commission of a crime may be established by circumstantial evidence. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975).

Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth, as we are required to do, Commonwealth v. Harper, supra, we conclude that the circumstantial evidence was sufficient to enable a jury to find beyond a reasonable doubt that appellant had fired the fatal shot. Four witnesses observed him arguing with the victim in a well-lighted, public area immediately prior to the shooting. One police officer heard a gunshot seconds after observing the argument and turned to see appellant flee as the victim stumbled and fell, fatally wounded. Because the victim had been shot through the heart and lung, the use of a deadly weapon upon a vital part of the body was sufficient to permit an inference of malice necessary for murder in the third degree. See: Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975).

Appellant offered an alibi defense. His wife testified that he had returned home that night shortly after 7:00 o'clock, P.M. and that he had been accompanied by a man named Bernard.*fn1 Helen Nowak, the supervisor of medical records at the Gemedco Medical Center, testified that according to her records, appellant could not have left the medical center before 7:30 o'clock. In response to a Commonwealth objection, the trial judge questioned the witness out of the hearing of the jury to determine the basis for her testimony. Ultimately, the judge sustained the Commonwealth's objection, apparently because the hypothetical nature of her testimony found no support in the records of the medical

[ 269 Pa. Super. Page 408]

    center. Thereafter, he ordered her testimony stricken and told the jury to disregard it. We need not determine the correctness of this ruling, for even if erroneous, the ruling was harmless. It was harmless because the trial judge permitted the witness to testify and she did testify from her own observation and recollection that appellant had been in ...

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