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COMMONWEALTH PENNSYLVANIA v. RICHARD HARRY FORTUNE (05/05/82)

submitted: May 5, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD HARRY FORTUNE, APPELLANT



No. 2550 Philadelphia, 1981, APPEAL FROM THE JUDGMENT OF SENTENCE OF SEPTEMBER 18, 1981 IN THE COURT OF COMMON PLEAS OF NORTHUMBERLAND COUNTY, CRIMINAL NO. CR-79-222.

COUNSEL

Peter T. Campana, Williamsport, for appellant.

James J. Rosini, District Attorney, Northumberland, for Commonwealth, appellee.

Spaeth, Rowley and Cirillo, JJ.

Author: Cirillo

[ 305 Pa. Super. Page 442]

Appellant, Richard Harry Fortune, was convicted by a jury on November 19, 1979, of second degree murder,*fn1 rape,*fn2 and criminal conspiracy to commit second degree murder.*fn3 After trial counsel timely filed post-verdict motions, he was replaced by present counsel who also filed additional post-verdict motions. These motions were denied by the trial court. Appellant was sentenced to life imprisonment on the second degree murder conviction and a concurrent term of not less than ten nor more than twenty years imprisonment

[ 305 Pa. Super. Page 443]

    on the criminal conspiracy conviction. He was additionally sentenced to a consecutive term of imprisonment of not less than ten nor more than twenty years on the rape conviction. This appeal followed.

Appellant raises two issues on appeal: (1) trial counsel was ineffective for failing to call as a defense witness appellant's brother, Roy Fortune; and (2) the evidence is insufficient, as a matter of law, to convict appellant of the crimes charged. We raise a third issue, sua sponte, that is that appellant was illegally sentenced when a consecutive sentence was imposed on him for the rape conviction.

We find no merit to appellant's first contention, and we adopt the finding of the trial court in regard to the issue of ineffectiveness.

Appellant's second contention is that the evidence is insufficient, as a matter of law, to sustain the convictions. We find no merit to this argument.

It is well settled that the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973). It is the province of the factfinder to weigh the evidence. Commonwealth v. Alston, 461 Pa. 664, 337 A.2d 597 (1975). The factfinder can believe all, part, or none of the evidence. Commonwealth v. Smith, 457 Pa. 638, 326 A.2d 60 (1974). The test for the sufficiency of the evidence was set forth in Commonwealth v. Jackson, 466 Pa. 311, 313, 353 A.2d 370, 371 (1976) as follows:

The test for the sufficiency of the evidence is whether accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the factfinder could properly have based its verdict, it is 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.

The record so viewed establishes that on January 26, 1979 in the early afternoon, appellant, his brother, Roy Fortune, and Robert Martin were riding in Martin's mother's car in Pottsville when they picked up the victim, Cynthia Nosek, who

[ 305 Pa. Super. Page 444]

    was hitch-hiking. While driving around the area, they stopped to buy food and alcoholic beverages. Later in the day, they travelled to and stopped at a remote area of Northumberland County referred to as the "Grate." Appellant told the victim to remove her clothes. She refused, stating that she had previously been raped. As appellant began to remove her clothes, she indicated that she would take her clothes off, and she removed her blouse and bra. Appellant removed her pants and placed her in the rear of the station wagon. The victim went into a convulsion, appellant had sexual intercourse with her, and she became unconscious. Appellant stated afterwards to his co-conspirators that "we raped her, we can't ...


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