Nos. 208 and 209 Special Transfer Docket Appeals from Judgments of Sentence of Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, Nos. 127 and 128 November Term, 1976.
Donald C. Marino, Philadelphia, for appellant.
Richard Myers, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
[ 276 Pa. Super. Page 521]
On April 6, 1977 appellant was found guilty of murder in the first degree and possession of an instrument of crime by verdict of a jury. Post verdict motions, including a claim of ineffective assistance of counsel, were filed. Thereafter, new counsel for appellant was appointed by the trial court. Following the denial of the post verdict motions, appellant was sentenced to a term of life imprisonment on the murder charge and a consecutive sentence of two and one-half years to five years on the weapons offense. From these judgments of sentence, appeal was taken.
On October 14, 1976 at 4:00 p. m. the body of Calvin Yates was found in the side yard of 631 North Twelfth Street, Philadelphia. The cause of his death was established as a stab wound in the abdomen which had been inflicted by a knife. The time of his death was determined to have been at least twelve hours before the discovery of his body. Appellant had lived with Yates in the first floor front apartment at 631 North Twelfth Street. On the night of the killing, appellant had told Bernard Upchurch that he was going to kill Yates. At 10:00 p. m. on October 13, 1976 and again at 4:00 a. m. on October 14, 1976, the occupant of
[ 276 Pa. Super. Page 522]
the first floor rear apartment at that address heard a lot of noise and someone saying "Oh, oh, oh." On the morning of October 14, at appellant's apartment, appellant told Upchurch that he had killed Yates and also showed him the decedent's body. At trial, Upchurch positively identified appellant as a man he had known for four or five years, and testified that his nickname was "Little John," and that he was the man who had talked about murdering Yates and the one who had shown him the body. At the time of appellant's arrest, a knife was found in his right hand coat pocket. He also gave three statements to the police.
On February 11, 1977, after hearing, appellant's motion to suppress his statements and the knife was granted. Appellant's trial counsel then filed a Petition for a Writ of Habeas Corpus, which was denied on February 18, 1977. An appeal was taken therefrom; but later discontinued. On March 28, 1977, after hearing, appellant's motion to suppress the identification testimony of Upchurch was denied.
Appellant asserts that the evidence was insufficient to support the guilty verdict as to possession of an instrument of crime. The only evidence to support such charge was purely circumstantial. However, the jury having concluded that appellant was the slayer, and that death resulted from the infliction of a stab wound with a knife, could logically have concluded from all the evidence that appellant had possession of a knife, and that the knife was an instrument commonly used for criminal purposes within the contemplation of Section 907 of the Crimes Code (18 Pa.C.S.A. 907). Similarly, they could have further logically concluded that his possession of the knife was under circumstances not manifestly appropriate for any lawful use that the knife may have had. In Commonwealth v. Wilcox, 481 Pa. 284, 392 A.2d 1294 (1978), a conviction for this offense was upheld based upon only circumstantial evidence and with an absence of any direct evidence of actual physical possession of the weapon. Therefore, appellant's conviction for this offense was bottomed upon competent evidence.
Appellant challenges the suppression ruling concerning the identification testimony, ...