No. 100 Special Transfer Docket, No. 101 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 76-77-985, 986, 987.
Richard E. Johnson, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn*
[ 270 Pa. Super. Page 451]
Appellant appeals from the judgment of sentence following his conviction on two counts of third degree murder following a jury trial. Although appellant couches his position in terms of two arguments, the thrust of both is that the evidence was insufficient to convict him of third degree murder on both counts because the evidence established a killing in self defense and not a malicious killing.
The test of sufficiency of the evidence is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the factfinder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979); Commonwealth v. Hamm, 474 Pa. 487, 494, 378 A.2d 1219, 1222 (1977). See also, Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Johnson, 458 Pa. 23, 326 A.2d 315 (1974).
As we review the evidence, this Court must consider the evidence in a light most favorable to the verdict winner, in this instance, the Commonwealth. See Commonwealth v. Glass, supra, Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976); Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975).
The prosecution's eyewitness testified that the appellant had engaged in an argument with the two victims early in the evening. The appellant left the scene of the argument but returned later having procured a bayonet. Upon his return, the appellant repeatedly stabbed both victims. Appellant testified that the victims were in fact aggressors and that he had acted in self-defense. The eyewitness, however, disputed that conclusion and testified that the
[ 270 Pa. Super. Page 452]
appellant was in fact the aggressor. In accordance with the above mentioned standard of review of the sufficiency of the evidence, we must reject appellant's claim for relief.
Justice ROBERT N. C. NIX, Jr. of the Supreme Court of Pennsylvania, Judge I. MARTIN WEKSELMAN of the Court of Common Pleas of Allegheny County, ...