No. 1053 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Div., Criminal Sect., Nos. 2284, 2285 and 2286 of Jan. Sess. 1977.
Richard A. McDaniel, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Lipez, JJ. Price, J., files a concurring and dissenting statement.
[ 275 Pa. Super. Page 91]
Appellant was tried by a judge without a jury and found guilty of aggravated assault (18 Pa.C.S.A. § 2702), possession of an instrument of crime (18 Pa.C.S.A. § 907), possession of a prohibited offensive weapon (18 Pa.C.S.A. § 908), unlawfully carrying a firearm on a public street (18 Pa.C.S.A.
[ 275 Pa. Super. Page 92]
§ 6108), and unlawfully carrying a firearm without a license (18 Pa.C.S.A. § 6106).
Appellant's primary argument is that the evidence was insufficient to prove that she shot the victim without justification. See The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. §§ 502 et seq. As in every appeal from a criminal conviction that challenges the sufficiency of the evidence, the Commonwealth, as verdict-winner, is entitled to have the evidence viewed in the light most favorable to it. Commonwealth v. Eberle, 474 Pa. 548, 379 A.2d 90 (1977); (plurality opinion); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975); Commonwealth v. Jones, 231 Pa. Super. 300, 332 A.2d 464 (1974). So viewed, the evidence may be stated as follows.
On December 27, 1976, the victim was working in his father's bar at 50th and Thompson Streets in Philadelphia. At approximately 10:30 p. m. appellant opened the door to the bar, entered about three feet, and said something that the victim could not understand. When the victim asked appellant to close the door, she replied, "If you want this door closed, you close it." As the victim walked around the bar counter to close the door, someone shouted, "Look out, she's got a gun." At this point, the victim was approximately six or seven feet from appellant. Appellant fired her gun, and the victim leapt at her. Appellant fired a second time, the victim landed against her, and both fell out the bar door onto the street pavement. The victim tried to wrestle the gun from appellant, and appellant began to strike him with her free hand. Finally, the victim pinned both appellant's hands, and told someone to grab the gun. When the gun was taken from appellant, the victim walked back into the bar, fell down, and realized for the first time that he had been shot in the leg. (He was subsequently hospitalized for two and a half days.) The victim had never seen appellant before; five men and two women were in the bar at the time of the incident, and none of the men had spoken to appellant before the shooting.
On the night of the incident Police Officer Thomas Hoban was off-duty and driving west on Thompson Street when he
[ 275 Pa. Super. Page 93]
heard what he thought was a gunshot and saw people coming out of the victim's bar. When he got out of his car, he saw several men on top of appellant, trying to pull a gun from her hand. He identified himself to the group as a police officer, obtained the gun, and handed it to Police Officer Louis Smith, who ...