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COMMONWEALTH PENNSYLVANIA v. JAMES PHILLIPS (09/19/79)

filed: September 19, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES PHILLIPS, APPELLANT



No. 545 April Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC7608548.

COUNSEL

John R. Cook, Assistant Public Defender, Pittsburgh, for appellant.

Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Price, Hester and Lipez, JJ.

Author: Price

[ 269 Pa. Super. Page 539]

Following a non-jury trial conducted on February 1, 1977, appellant was convicted of aggravated assault*fn1 and carrying a firearm without a license.*fn2 Post-trial motions for a new trial and in arrest of judgment were denied, and on December 19, 1977, appellant was sentenced to pay the costs of

[ 269 Pa. Super. Page 540]

    prosecution and to undergo a term of imprisonment of not less than nine (9) months nor more than eighteen (18) months, to commence February 1, 1977. Appellant now contends that the evidence was insufficient to sustain the guilty verdict on the aggravated assault count. We disagree and consequently affirm the judgment of sentence.

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978), the following facts were adduced at trial. On October 1, 1976, James Lidell, the victim of the assault, was in Mason's Bar, an establishment located on Wylie Avenue, Pittsburgh. Mr. Lidell had been in the bar for approximately two hours and had consumed three or four beers when he bumped into appellant. An argument ensued between the two during which Mr. Lidell briefly turned away from appellant. When Mr. Lidell again faced appellant, the latter had a gun in his hand and Mr. Lidell was immediately hit in the leg by a single gunshot. The victim then exited the bar and walked down the street before collapsing. Prior to losing consciousness, he announced that he had been shot.

Two officers from the Pittsburgh Police Department subsequently found Mr. Lidell in a doorway outside the bar bleeding from a wound in the leg. Before being taken away by an ambulance, Mr. Lidell informed the police that he had been "shot by a man in a black coat" who was in a bar. N.T. 27. Following a brief search, appellant was found in Mason's Bar in the company of an infant and a black female. The victim was contacted through the medical squad, and he answered affirmatively that the individual with the gun had been in similar company. Appellant was then searched and a .32 caliber revolver was found in a belt holster on his right hip. The revolver had been recently fired and was fully loaded save for one spent shell. At trial, Mr. Lidell positively identified appellant as the person who had trained the gun on him.

[ 269 Pa. Super. Page 541]

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 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. ...


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