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COMMONWEALTH PENNSYLVANIA v. DERRICK PETTUS (02/05/81)

decided: February 5, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DERRICK PETTUS, APPELLANT



No. 254 January Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, Nos. 2117, 2118, and 2120 May Term, 1976.

COUNSEL

Albert M. Bender, Robert G. Schwartz, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Sarah Vandenbraak, Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., concurs in the result. Roberts, J., filed a dissenting opinion.

Author: Larsen

[ 492 Pa. Page 560]

OPINION

On March 1, 1977 Appellant, Derrick Pettus, was convicted in a jury trial of murder of the third degree, conspiracy, and possession of an instrument of crime. After denying post-trial motions, the trial court sentenced appellant to four to ten years on the murder conviction and one to two years on the remaining convictions. Appellant did not pursue a direct appeal. Three years thereafter, appellant obtained new counsel and filed a petition under the Post-Conviction Hearing Act*fn1 alleging, inter alia, trial counsel's ineffectiveness in failing to perfect an appeal on his behalf. The P.C.H.A. court granted Appellant the right to appeal from the judgment of sentence nunc pro tunc. Appellant's appeal to this Court alleges insufficiency of the evidence, and ineffectiveness of trial counsel.

In response to an insufficiency of evidence claim, we view all the evidence in the light most favorable to the verdict winner, accepting as true all direct and circumstantial evidence which, if believed, would support a finding that the accused is guilty of the crime of which he is charged beyond

[ 492 Pa. Page 561]

    a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 212, 413 A.2d 1088, 1090 (1980).

Using this standard, the record below reveals the following facts: Commonwealth witness Tyrone West testified to events on the evening of May 5, 1976, relating that appellant and West were sitting in a neighborhood park when the victim walked by. West remarked that the victim had assaulted him, and appellant spoke of revenge. Later that evening appellant and West went to the victim's home, and West threw a brick through the victim's front window. The victim came out of his house, and West ran away. As he was running, he heard a shot.

Commonwealth witness Lawrence Pickney testified that he was walking down the street on which the victim's house was located on the evening in question when he saw appellant and West confront the victim. Pickney also saw appellant point a gun in the victim's direction and misfire twice. Pickney, too, ran from the scene, and heard a gunshot. He turned around, and saw the victim fall. A bullet was later found to have pierced the victim's heart, causing his death.

Appellant argues the insufficiency of this evidence, 1) because of its circumstantial nature, and, 2) because of its unreliable quality due to testimony that each witness had consumed an ...


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