Nos. 254 and 255 Special Transfer Docket Appeals from the Judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia at Nos. 389-393 February Term, 1975
David L. Pollack, Philadelphia, for appellant.
Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
[ 270 Pa. Super. Page 50]
On July 9, 1975, appellant, Joseph B. Sample, was convicted by a jury of murder of the first degree, robbery, criminal conspiracy and various weapons offenses. Post-verdict motions were filed, argued and denied. Thereafter appellant was sentenced to a term of life imprisonment for his murder conviction, and concurrent terms of eight to twenty years for robbery, five to ten years for conspiracy, and two to five years for possessing a prohibited offense weapon. No direct appeals were taken.
On May 1, 1978, appellant, pursuant to his petition filed in accordance with the provisions of the Post Conviction Hearing Act,*fn1 was granted leave to appeal nunc pro tunc.
The facts of the instant crime are as follows. At approximately 2:45 p. m., on January 7, 1975, the decedent, Bruce Tingle, and his wife, Claudette, were in the kitchen of their home in Philadelphia. Mrs. Tingle was speaking on the telephone when the doorbell rang, and her husband went to the door. When he returned to the kitchen, he was followed by two other persons, one of whom was armed with a pistol. Claudette Tingle knew one of these persons, Norman Miller, from previous visits by Miller to the Tingle home. The other, armed, person Mrs. Tingle subsequently identified as appellant.
Appellant ordered decedent to "give up everything," which decedent proceeded to do in that he placed money and marijuana in a leather bag. Appellant then told Mrs. Tingle to leave the room. She complied with this direction, picked up her young child, and walked out of the kitchen. As Mrs. Tingle left the room she heard a gunshot. Norman Miller
[ 270 Pa. Super. Page 51]
ran past on his way toward the door, knocking decedent's wife to the floor. When she got up, Mrs. Tingle heard a second gunshot. From the kitchen the victim yelled to his wife to run. Mrs. Tingle ran from her home with the child, went to a neighbor's home, left the child and told the neighbor to telephone the police. Mrs. Tingle returned to the street where she discovered her husband lying on the sidewalk fatally wounded by a single .32 caliber bullet in the chest.
Appellant challenges, inter alia, the sufficiency of the evidence to support the verdicts. The test to be employed in evaluating the sufficiency of the evidence in a criminal case is well-settled. We must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences therefrom upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and reasonable inferences are sufficient in law to prove beyond a reasonable doubt all the elements of the crime charged. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). Applying this test to the facts recounted supra, we conclude the evidence adduced at trial was sufficient in law to support verdicts of guilty on those counts charging murder of the first degree, robbery, and criminal conspiracy.
Appellant was also charged with three weapons violations upon which guilty verdicts were returned. Appellant was adjudged guilty of violation of 18 Pa.C.S.A. § 907(a), possessing instrument of crime, generally; 18 Pa.C.S.A. § 907(b), possessing instrument of crime, weapon, and 18 Pa.C.S.A. § 908, possessing prohibited offensive weapon. Sentence was suspended on those counts charging violation of §§ 907(a) and 907(b). On that count charging violation of § 908, appellant was sentenced to a term of imprisonment of two to five years.
The weapon appellant possessed and used during the commission of the instant crime was an unaltered .32 caliber revolver. It is ...