Nos. 275 and 549 January Term, 1977, Appeal from Sentence and Decree of the Court of Common Pleas, Philadelphia County, As of December Term, 1975, No. 1044 and February Term, 1976, Nos. 1500-1501
Joel Every, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Roberts, J., filed a concurring opinion. Eagen, C. J., and O'Brien, J., concurred in the result. Manderino, J., filed a dissenting opinion.
This appeal flows from the shooting death of Bernard Petti and the shooting of Jessie Wallace in a Philadelphia bar on October 25, 1975. As a result of these incidents, appellant was arrested and tried before a jury and convicted of involuntary manslaughter, aggravated assault and possession of an instrument of crime. This is a direct appeal from the imposition of the judgments of sentence after the denial of post verdict motions.
The first contention to be considered is appellant's claim that the evidence was insufficient to sustain the verdicts. The first witness called by the prosecution was Michael Frazier who testified that at or about 7 o'clock on the evening of the shootings, he observed appellant, appellant's brother and the deceased with a shotgun. This witness watched as the three men sawed off the barrel of the weapon. One of the victims, Jessie Wallace, testified that at or about 11 p. m., he was in the Hunt Room South Bar when two men entered and walked to the men's room in the rear of the establishment. He recognized one of the two men as
being appellant, as he had seen him on previous occasions in the area. The second man entering with appellant was Petti, the decedent. Petti and appellant emerged from the restroom and appellant grabbed the witness -- Wallace -- from behind by his collar, placed a gun to his head, and announced that it was a "stickup." In the ensuing commotion, Petti attempted to run out of the bar and was shot by appellant as he reached the door. Appellant then shot Wallace in the neck.
A subsequent search of appellant's home revealed a .38 spent cartridge, blood-stained clothing and an empty box of .38 caliber ammunition. Additionally, when appellant was taken into custody at approximately 1:30 a. m. on October 26, 1975, he admitted going to the bar with Petti and being present when Petti was shot, but denied being responsible for either the shooting of Petti or Wallace. At the time of his apprehension, appellant was suffering from a gunshot wound to his left hand, which a Commonwealth expert medical witness theorized could have occurred when he shot Wallace while holding him by the collar.
The thrust of appellant's sufficiency challenge is that Wallace's testimony should be discredited as a matter of law. It is argued that no other witness present at the scene could verify or corroborate Wallace's testimony, that it was replete with contradictions and omissions, and that it was contradicted by the testimony of other witnesses present during the occurrence. Appellant implicitly concedes that if Wallace's testimony is legally competent and if believed by the jury, as it apparently was, it would clearly support the verdicts returned in this case.
It is axiomatic in this jurisdiction that the credibility of a witness is to be entrusted to the finder of fact. Commonwealth v. Hampton, 462 Pa. 322, 341 A.2d 101 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). We have recognized ...