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COMMONWEALTH PENNSYLVANIA v. RODNEY ALLEN (05/08/81)

filed: May 8, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
RODNEY ALLEN, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, V. ALLEN ADAMS, APPELLANT



No. 2225 October Term, 1978, No. 2435 October Term, 1978, Appeals from Judges of Sentences of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 1752, 1754, 1756, 1755 November Term, 1977 and No. 77-11-1760-1764.

COUNSEL

Daniel A. Rendine, Philadelphia, for appellant in No. 2225.

Franklin L. Noel, Assistant District Attorney, Philadelphia, for Commonwealth, appellee in No. 2225.

James F. McBride, Philadelphia, for appellant in No. 2435.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee in No. 2435.

Spaeth, Cavanaugh and O'Kicki, JJ.*fn*

Author: Cavanaugh

[ 287 Pa. Super. Page 93]

This case involves two appeals. Rodney Allen, appellant in No. 2225, and Allen Adams, appellant in No. 2435, were co-defendants in a non-jury trial. Both were found guilty of possession of an instrument of crime, conspiracy to commit robbery, and two counts of robbery. Their post-verdict motions were denied and sentence was imposed. The court sentenced Allen to five to ten years' imprisonment on one robbery count, ten years' probation on the conspiracy count (to run concurrent with the robbery sentence); and suspended sentence on the other counts. The court sentenced Adams to five to ten years' imprisonment on each robbery count (to run concurrently), ten years' probation on the conspiracy count (to run concurrent with the robbery sentence), and suspended sentence on the count of possession of an instrument of crime. This appeal followed. We affirm.

Both defendants argue that there was insufficient evidence to sustain the verdicts and that the verdicts were against the weight of the evidence.

[ 287 Pa. Super. Page 94]

In testing the sufficiency of evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next, we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are 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. Madison, 263 Pa. Super. 206, 210, 397 A.2d 818, 820 (1979) (citations omitted). Our review of the evidence in this manner discloses the following. Carl Izzard and James Gray, the victims, and others were playing dice and gambling. The defendants, Allen and Adams, and their companion, Gregory White, came to the place where Izzard and Gray and others were playing, but they did not play dice or gamble. The victims, the defendants, and White later decided to shoot pool for money. They all got in a car to go to the pool hall. On the way they stopped so that Adams could get a pool cue. When Adams returned to the car, he was carrying a small sack rather than a pool cue. They continued driving to the pool hall, and on the way Adams produced a gun and demanded Izzard and Gray to give him their money. After Adams hit Izzard on the head with the gun, Izzard gave him his money. Gray also gave him money and gave his watch to White, who later returned the watch.

Allen, who was driving, took the gun from Adams and hit Izzard with it. Adams punched and kicked Izzard and then the victims were allowed to leave the car.

The foregoing evidence was sufficient to sustain the verdicts. The defendants' argument that the evidence was insufficient relies on their testimony and the testimony of White, who was a co-defendant.*fn1 This testimony showed that the defendants had participated in the dice game, had been cheated by the victims, and were reclaiming their lost money from the victims. The factfinder, however, may

[ 287 Pa. Super. Page 95]

    believe some, all, or none of the testimony, Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976). Here the factfinder chose to believe the prosecution's testimony and disbelieve the defense testimony. Since we must view the evidence in the light most favorable to the Commonwealth, Commonwealth v. Madison, supra, the argument that the evidence was insufficient has no merit.

Defendants also argue that the verdict is against the weight of the evidence since the defense testimony is more credible than the prosecution testimony. The question of credibility is for the factfinder. Commonwealth v. Myrick, supra. Our review of the record discloses no reason to disturb the verdict of the factfinder.

Defendants contend that their Sixth Amendment right to confront their accuser was violated since the Commonwealth did not call one of the victims, Gray, as a witness. The Sixth Amendment right to confrontation extends only to witnesses whose testimony is presented. Commonwealth v. Paskings, 447 Pa. 350, 290 A.2d 82 (1972). Moreover, the Commonwealth is not obligated to call the victim of a crime as a witness. In Interest of Gonzales, 266 Pa. Super. 468, 405 A.2d 529 (1979); ...


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