No. 321 Special Transfer Docket, Appeal from Judgment of Sentence of Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, September Term, 1977, No. 448.
Samuel Kagle, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hoffman, Eagen and Hess, JJ.*fn*
[ 273 Pa. Super. Page 485]
John Quincy Adams has taken a direct appeal from his conviction and sentence for murder of the third degree. The charges against Adams arose out of the shooting death of a former business associate inside appellant's apartment following an argument over money allegedly owed to him by the decedent. The Commonwealth's evidence was largely circumstantial, and a written statement was suppressed but not prior notes taken down by an investigating officer. Adams relied on self-defense and contended that he fired after the victim made an assault upon him by picking up a chair in a threatening manner. Appellant obtained a hunting rifle from the bedroom of the apartment, returned to the room where the victim was and shot him twice in the stomach, causing his death. Thereafter Adams apparently dragged the body from his apartment, cleaned up the area and took the rifle to a friend's apartment.
It is first alleged that error was committed when the trial judge refused to affirm the following Point for Charge No. 25:
"If the jury find that any circumstance relied upon which may be incriminating is equally susceptible of two interpretations, each of which appears to be reasonable and one of which points to the defendant's guilt and the other to his innocence, it is your duty to accept that of innocence and reject that which points to guilt. Thus, when the testimony of the Commonwealth's witnesses presents a set of circumstances from which a jury can draw two equally reasonable and inconsistent inferences, the jury cannot
[ 273 Pa. Super. Page 486]
choose that which will deprive a man of his liberty: Commonwealth v. New, 354 Pa. 188, 47 A.2d 450."
We have examined New, a landmark case. Language similar to that set forth in Point 25 is present. As we view the language, it sets standards for trial judges to follow in deciding whether to submit a case to the jury or direct a verdict. See Commonwealth v. New, supra, 354 Pa. at 221, 47 A.2d 450. In Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 385 (1978) similar language was referred to as an "evidentiary proposition." To submit the language as quoted to a jury would confuse persons unlearned in the law, and perhaps many who are supposed to be learned. Circumstantial evidence "is sufficient if the circumstances are consistent with criminal activity even though they might likewise be consistent with innocent behavior." (Emphasis supplied). Commonwealth v. Moore, 226 Pa. Super. 32, 34, 311 A.2d 704, 705 (1973). The familiar rule enunciated in Commonwealth v. Bausewine, 354 Pa. 35, 46 A.2d 491 (1946) and repeated many times is still the standard.
". . . guilt must be proved and not conjectured. The reasonable inference of guilt must be based on facts and conditions proved; it cannot rest solely on suspicion or surmise. These do not take the place of testimony. The facts and circumstances proved must, in order to warrant a conviction, be such as to establish guilt of the defendant, not necessarily beyond a moral certainty, ...