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filed: November 30, 1982.


No. 290 Pittsburgh, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County at Nos. 631, 632, 633 and 634 of 1980.


Harold Gondelman, Pittsburgh, for appellant.

Shad Connelly, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Cavanaugh, Montemuro and Van der Voort, JJ.

Author: Cavanaugh

[ 308 Pa. Super. Page 538]

Appellant, Louis P. DiNicola, was convicted of arson and three counts of murder in the second degree following a jury trial before McClelland, J. Following denial of his motions in arrest of judgment and for new trial he was sentenced to three consecutive life sentences. He has appealed from the judgment of sentence.

Appellant's first contention is that the evidence is insufficient to sustain his convictions. The test for sufficiency of evidence in a criminal case is whether the evidence admitted at trial is sufficient to prove every element of the crime charged beyond a reasonable doubt. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). An appellate court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom, upon which, if believed, the factfinder could properly have based its verdict. Commonwealth v. Helm, 455 Pa. 315, 402 A.2d 500 (1979). Further, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.

[ 308 Pa. Super. Page 539]

Later on, Ms. Sweet and appellant went into the living room and Jefferson left. Appellant sat on the floor of the living room as he was still in dirty work clothes. Jefferson returned shortly and was wearing fresh clothing. Appellant asked Ms. Sweet if he could take a shower as he lived a long distance away and Ms. Sweet agreed.

Ms. Sweet and Jefferson then engaged in petting in the living room until she had to go to the bathroom. Appellant was still showering and told her "to come on in, I won't look." She used the bathroom facilities and he said to her: "See, I didn't look" and Ms. Sweet replied "Good, it looks like I could trust you." After Ms. Sweet left the bathroom she went into her bedroom with Jefferson. She got undressed and got in bed with Jefferson and engaged in sexual activities. Ms. Sweet observed the appellant leave the bathroom and saw him in the hallway outside her bedroom. She testified upon direct examination:

Q. Describe the sounds as you heard them?

A. Well, from the moment I saw him, I heard a continual track of footsteps walk through the kitchen, into the den, into the living room, and then there was a blank pause, and then it walked back into the den, and I heard the door open.

Q. Now, you said you heard these footsteps go in a certain direction and go across certain floors. How could you tell which floor they were crossing?

A. Because the floors -- the floors were different in the kitchen, the bathroom, and my bedroom. There was no wax linoleum flooring, which it was one sheet just laid and in the den and in David's bedroom and in the living room, they were old, real old hardwood floors and they creaked.

[ 308 Pa. Super. Page 541]

Q. Could you tell from the sound where it was?

A. Yes, you could tell. You could tell very easily, it was the door in the den where my coats were.

Q. That would be where?

A. The door at the back of the stairway.

Q. The closet?

A. Yeah, it's a closet door right here (indicating). You could hear this open and then it shut, and then I heard these footsteps walk across here (indicating), and this door open (indicating), and then there was silence. Then suddenly, the footsteps just right away left.

Q. When you say, and left --

A. Well, it was at a faster pace and I could tell it went out the back door because of the sounds.

Q. What sound was there at the back door?

A. Well, it was our downtown city street sounds that when the door opened, you know, you're just aware that the back door has opened to the outside.

Q. Did you hear the back door close?

A. No.

Q. Did you remain in the bed after the steps went out the door?

A. Yes.

Q. What occurred in the bed at this time?

A. I was relieved that he left, because I was worried about him walking through my apartment. I was worried about my daughter, my stereo and my belongings. So, I was relieved he left and Michael had finished making love to me and he just laid there. And I just figured I'd get up soon and shut the door, get up soon and lock the door.

Ms. Sweet testified that she then dozed off with Jefferson sleeping on top of her. The next thing she knew she was awakened by noises in the ...

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