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COMMONWEALTH PENNSYLVANIA v. HARRY J. STARKS (01/25/82)

submitted: January 25, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
HARRY J. STARKS, APPELLANT



No. 217 Philadelphia, 1981, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1212 - 1216 February Term, 1979.

COUNSEL

Joseph C. Santaguida, Philadelphia, for appellant.

Richard L. McMonigle, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Cirillo and Popovich, JJ. Popovich, J., concurs in the result.

Author: Wieand

[ 298 Pa. Super. Page 215]

Appellant, Harry J. Starks, was tried non-jury and convicted of murder in the third degree*fn1 and criminal conspiracy*fn2 in connection with the shooting death of Carl Sutton. Following the denial of post verdict motions, Starks was sentenced to concurrent terms of imprisonment. On appeal he contends (1) that the verdict was against the weight of the evidence; (2) that certain evidence was improperly received; and (3) that the trial court erred in refusing to allow him to withdraw his waiver of trial by jury. Our review convinces us that these claims are without merit; therefore, the judgments of sentence will be affirmed.

The relevant facts are these. On February 1, 1979, several armed men forcibly entered a residence at 1720 Reed Street in Philadelphia and announced a holdup. There were, in addition to the victim, two eyewitnesses to the incident, one of whom specifically identified appellant as a participant.

[ 298 Pa. Super. Page 216]

This witness testified that appellant had pushed her into the kitchen, and that, while in the kitchen, she heard a "large noise" in her house. The second eyewitness testified that she had engaged in a scuffle with another of the intruders, during the course of which the victim, while descending the stairs from his second floor bedroom, was shot by yet another of the intruders. When the police arrived at the scene, the victim was found in the hallway of the premises. He was pronounced dead shortly thereafter by the medical examiner. Appellant presented two alibi witnesses, both relatives, who testified that appellant was elsewhere at the time of the robbery and shooting.

"The grant or refusal of a new trial on the grounds that the verdict was or was not against the weight of the evidence is generally committed to the sound discretion of the trial court. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972); Commonwealth v. Larew, 289 Pa. Super. 34, 432 A.2d 1037 (1981); Commonwealth v. Reidenbaugh, 266 Pa. Super. 315, 404 A.2d 697 (1978); Commonwealth v. James, 197 Pa. Super. 110, 177 A.2d 11 (1962)." Commonwealth v. Gillespie, 290 Pa. Superior Ct. 336, 342, 434 A.2d 781, 784 (1981). Where, as here, the weight to be given the evidence and the credibility to be accorded to the witnesses has been passed upon by the trial judge as trier of fact, his findings are entitled to the same weight as a jury verdict, and his refusal to grant a new trial on the grounds that the verdict was against the weight of the evidence will not be disturbed if supported by the record. Commonwealth v. Dawkins, 227 Pa. Superior Ct. 558, 561, 322 A.2d 715, 716 (1974). Our review of the record is persuasive that the trial court properly denied appellant's motion for a new trial based on the weight of the evidence.*fn3

[ 298 Pa. Super. Page 217]

Appellant next challenges the admission into evidence of certain testimony provided by a Commonwealth witness, Penny Combs, an alleged eyewitness. This witness testified that after she had given statements placing appellant at the scene and had testified at the preliminary hearing, she received threats and was confronted on several occasions by appellant protesting his innocence. She testified that, as a result, she feared for her own safety. Appellant asserts that these statements constituted hearsay, prejudicial in effect, and should have been excluded. We disagree.

The case of Commonwealth v. Douglass, 185 Pa. Superior Ct. 269, 138 A.2d 193 (1958), cited by the Commonwealth, is instructive. In Douglass, the appellant had been charged with robbery in connection with the holdup of a barbecue business. The proprietress of the establishment had recognized the appellant as one of the participants in the robbery, and, on several occasions prior to and at trial, positively identified him as such. However, she failed to identify him at the hearing before the magistrate, and in fact testified that he was not the robber. At trial, she explained that she was aware of threats to her safety, thus prompting her to testify as she did at the hearing. The appellant argued that testimony by the robbery victim concerning such threats constituted inadmissible hearsay. In rejecting this claim the court stated: "[T]his evidence was not admitted to prove the truth of what was said. It was admitted to show that it was said. The important ...


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