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filed: October 12, 1979.



John Paul Curran, Philadelphia, for appellant.

Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Nix

[ 271 Pa. Super. Page 4]

Appellant Kennedy was convicted for first degree murder and possession of an instrument of crime following a bench trial and sentenced to life imprisonment. He raises five issues for our review, the first of which concerns the sufficiency of the evidence to support his convictions.

To evaluate the sufficiency of the evidence, 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 upon which, if believed, the [trier of fact] could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt 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 accorded the evidence produced. The fact-finder is free to believe all, part or none of the evidence. Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1978).

The record indicates that there was sufficient evidence to convict appellant of first degree murder. Pamela Brown, the sister of the victim, testified that the morning of May 4, 1976, the doorbell rang three times, a ring appellant used, and that her brother James ran downstairs to answer it. Ms. Brown said that she recognized the visitor's footsteps as being those of appellant because he had lived in their home during a prior summer. After appellant entered, Ms. Brown heard talking but could not understand what was being said. After about five minutes, she heard a shot followed by five more shots. She ran downstairs and outside and saw appellant fleeing on a ten-speed bicycle. She called to him and asked "Jazzmo, why did you do this to James?" Appellant, whose nickname is Jazzmo, looked around but kept going.

[ 271 Pa. Super. Page 5]

James Williams, who lived across the street from the Browns' house, testified that he was standing at an open window on the first floor of his house talking with a lady standing on the sidewalk when he heard two shots and saw a boy run out of the Browns' house and jump on a bike. He saw and heard Ms. Brown yell "Call the law. Call the Law." Mr. Williams identified appellant at trial as the person he saw leave the house and flee. Police officers found James Brown dead with a $5 bill and a .38 caliber revolver with six spent casings in it lying near the body. The parties stipulated that the cause of death was six gunshot wounds to the head and trunk of the victim fired from close range. Appellant testified in his own behalf and denied that he had either killed the victim or had seen him the day of the murder.

Appellant contends that there was insufficient evidence to identify him as the killer and he challenges the identification by Ms. Brown and Mr. Williams as being too speculative because neither saw the killer's full face. These contentions are without merit. "There is no requirement that a killing, or a first degree murder for that matter, be proven by positive eyewitness testimony." Commonwealth v. Comer Glass, 486 Pa. 334, 341, 405 A.2d 1236, 1239 (1979). Appellant's contentions revolve around issues of credibility which are left to the fact finder to resolve. Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1976). It is also argued that Ms. Brown's identification of him as the killer based on his footsteps is too speculative, citing Commonwealth v. Paschall, 214 Pa. Super. 474, 257 A.2d 687 (1969) as support. In Paschall the Court determined that an identification based on the "build" of the assailant is weaker than a facial or voice identification, and in the absence of some deformity in defendant's build, a qualified identification based thereon could not serve as the sole basis for a conviction.

If the jury had been required to rely only upon Ms. Brown's recognition of appellant's footsteps, the Paschall rationale might well be applicable, absent a showing that there was some unique or distinguishing feature as to appellant's

[ 271 Pa. Super. Page 6]

    walk. However, this was not the case. In addition to the recognition of appellant's footsteps, Ms. Brown knew appellant for a substantial period of time prior to the incident and recognized his manner of ringing the bell. Immediately following the shots she observed appellant riding away from the home on a bike. When she called to appellant by name, he responded by turning in her direction and then proceeded to leave the area. Finally, the testimony of Mr. Williams established that the person on the bike was in fact the same person who emerged from the house immediately after the shots were fired. This ...

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