No. 80-1-42, Appeal from Judgments of Sentence entered January 22, 1980, by the Court of Common Pleas, Criminal, of Fayette County, at Nos. 814 and 814-1/2 of 1978
Dennis J. Clark, Pittsburgh, for appellant.
Gerald R. Solomon, Dist. Atty., Samuel Davis, Asst. Dist. Atty., Uniontown, for appellee.
O'Brien, C. J., Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., files a concurring opinion in which Kauffman, J., joins. Roberts, J., files a dissenting opinion.
Appellant, Samuel C. Contakos, was convicted by a jury of murder of the first degree and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction and a consecutive prison term of five-to-ten years for the conspiracy conviction. This direct appeal followed. We vacate judgment
of sentence and remand the case to the trial court for proceedings consistent with this Opinion.
The facts are as follows. The principal Commonwealth witness at trial was Thomas Harry Colvin, who had previously pled guilty to killing the victim in the instant case, Charles Jacob Lowry. Colvin testified that he and appellant had agreed with two other individuals to kill Lowry for $1,500 each. Colvin stated that he and appellant had, on October 3, 1977, traveled to Johnstown but were unable to find Lowry. They made the same trip three days later and upon locating the victim, the pair shot and killed him. Colvin testified that he had used a .25 caliber gun while appellant had used a .357 magnum. While there were no other eyewitnesses to the shooting, various other witnesses were able to place appellant and Colvin in the area on both October 3 and October 6. The Commonwealth also presented medical testimony that the victim had been shot nine times. Seven of the wounds had been caused by .25 caliber bullets while the other two wounds were caused by bullets of an undeterminable origin.
Two of appellant's claims, if meritorious, would entitle him to a discharge.*fn1 He first argues that the evidence presented at trial was insufficient to sustain either of his convictions. As we have oft stated:
"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established 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 factfinder is free to believe all, part or none of the evidence." Commonwealth v. Page 469} Rose, 463 Pa. 264, 276-68, 344 A.2d 824, 825-26 (1975) (Citations omitted).
In the instant case, the testimony of Colvin alone is sufficient to establish all of the elements of both murder of the first degree and criminal conspiracy.
Appellant's second assertion that would entitle him to a discharge is that the trial court did not have jurisdiction in the case and the charges should have been dismissed because neither of the informations had been personally signed by the district attorney. Both informations were rubber stamped with the district attorney's signature. Each, however, is also marked "Approved 12-20-78 R.C.W." The Commonwealth asserts that "R.C.W." is Assistant District Attorney Ralph C. Warman.
The Judicial Code provides:
"(d) Duties of prosecuting attorneys. -- Whenever a transcript of proceedings, complaint and all related papers in a criminal proceeding where the defendant has been held for court have been transmitted to the clerk of court or the officer designated by the court, such officer, after recording the same, shall immediately transmit the documents or a copy thereof to the district attorney. The district attorney or his designee shall have the duty to inquire into and make full examination of all the facts and circumstances connected with each such case to determine if the facts and circumstances warrant the filing of an information or informations premised upon the transcript. No information shall be filed by the district attorney concerning alleged criminal violations where a preliminary hearing has not been held or properly waived except as prescribed by general rules.
"(e) Disposition of cases. -- The district attorney shall sign all informations. The information shall be filed in the form prescribed by general rules.
"(i) Definition. -- As used in this section 'district attorney' includes a special attorney appointed by the Attorney General in the ...