Nos. 301 January Term, 1977 and 260 January Term, 1979, Appeals from the judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 974 and 975 January Sessions, 1976
David Zwanetz, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., James Garrett, Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Eagen, C. J., and Nix, J., concur in the result. Roberts, J., files a dissenting opinion in which Manderino, J., joins.
Appellant, Arthur Pitts, was tried by a judge sitting with a jury for the homicide of Edward Carter on December 23, 1975. The jury found appellant guilty of murder of the third degree and possessing instruments of crime. Post-verdict motions were denied and appellant was sentenced to ten to twenty years in prison for the conviction of murder of the third degree and two and one-half to five years on the instruments of crime conviction, both sentences to be concurrent. This appeal followed.*fn1
Appellant first argues the evidence is insufficient as a matter of law to sustain his conviction for murder of the third degree. This argument centers on appellant's belief the jury should have accepted defense testimony of voluntary intoxication, rather than the Commonwealth's evidence.
The facts surrounding this issue are as follows. On December 23, 1975, appellant and decedent, Edward Carter, were drinking alcoholic beverages during the day. The testimony indicates a quantity of wine and large quantities of whiskey were consumed by appellant, decedent and a mutual friend, "Mr. Lumpkin." At approximately 6:00 p. m., Roberta Johnson, decedent's paramour, helped decedent upstairs to the bedroom. Johnson's assistance was necessary as Carter was intoxicated. Both Carter and Johnson lie on the bed, Johnson watching television and Carter sleeping. Appellant entered the room, attempted to wake up Carter,
and complained that Carter was involved with "his woman." During this argument, Johnson left the bedroom, but asked Lumpkin to go up to the bedroom to watch decedent and appellant. Upon her return to the bedroom, Johnson was asked by Lumpkin to call the police. She entered the room and saw Carter on the couch. He had sustained stab wounds of the stomach and leg, which caused his death.*fn2 As Johnson went to the house next door to call police, she noticed appellant leaving the house where the stabbing had occurred. She saw him drop a kitchen knife and then retrieve it. Subsequently, when the police arrived at the scene of the Carter slaying appellant returned to the house and attempted to conceal the knife in a flower pot. The knife was found by the police and it was later determined the knife had human blood on it. Appellant was then arrested. The arresting and interrogating officers both testified that although appellant's breath did smell of alcohol, his reflexes and ability to understand and discuss events surrounding the stabbing appeared unimpaired.
In Commonwealth v. Firth, 479 Pa. 333, 388 A.2d 683 (1978), this court reiterated the standard of appellate review in judging the sufficiency of the evidence:
"In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-826 (1975), we stated:
"'The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be ...