No. 233 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Division, at Criminal No. 4 1/3 of 1979, dated March 11, 1980.
Thomas P. Ruane, Jr., Uniontown, for appellant.
Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
Spaeth, Rowley*fn1 and Montgomery, JJ.
[ 300 Pa. Super. Page 301]
This is a direct appeal by Dennis Ray McFadden following his conviction, after trial by jury, of theft by unlawful taking. Appellant alleges: (1) that his trial counsel was ineffective in failing to move to suppress identification evidence; (2) that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated, and (3) that the Commonwealth's evidence was insufficient to support the jury's verdict.
The charges against appellant arose out of the theft of the purses of Mrs. Elizabeth Gadd and a friend. Shortly after
[ 300 Pa. Super. Page 302]
the incident, Mrs. Gadd described the perpetrator to police as having brown hair worn in a pony tail and a goatee. Mrs. Gadd identified appellant prior to trial from a photographic display containing approximately fifty pictures.*fn2 It is conceded by the Commonwealth that appellant's photograph was the only one depicting a man with a pony tail and goatee.
Appellant was arrested and charged on December 8, 1978. On June 7, 1979, the Commonwealth filed a petition to extend the time for trial under Pa.R.Crim.P. 1100, alleging the unavailability of defense counsel. An extension was granted after a hearing at which appellant was present with counsel. No record was made of the hearing.
Trial was held on July 10, 1979. At trial, evidence of the pre-trial photographic identification was introduced and there was also an in-court identification of appellant by Mrs. Gadd. Appellant was convicted, his post-trial motions were denied, and he was sentenced on March 11, 1980.
We find appellant's argument regarding the sufficiency of the evidence to be without merit. The test of whether the evidence was sufficient to support a conviction is whether, viewing the evidence in the light most favorable to the Commonwealth, the jury could reasonably have found all of the elements of the crime beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975). Appellant's only argument for the proposition that the evidence was insufficient is that because of Mrs. Gadd's limited opportunity to observe the perpetrator, her identification testimony was not credible. However, it is within the sole province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Davis, 466 Pa. 102, 113, 351 A.2d 642, 647 (1978); Commonwealth v. Rose, 463 ...