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COMMONWEALTH PENNSYLVANIA v. JOHN B. NELSON (03/15/83)

submitted: March 15, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN B. NELSON, APPELLANT



No. 488 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, June, 1980, at No. 2335.

COUNSEL

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Rowley and Cirillo, JJ. Cercone, President Judge, files a dissenting opinion.

Author: Rowley

[ 320 Pa. Super. Page 490]

Appellant was convicted, after a non-jury trial, of corruption of minors. He was acquitted of charges of rape, indecent assault, simple assault, aggravated assault, terroristic threats and unlawful restraint. Post-trial motions were filed and denied. Appellant was sentenced to "time-in" to twenty-three months imprisonment. This direct appeal followed.

On April 16, 1980, the fourteen-year-old victim, who was running away from a home for delinquent girls, met appellant at Woodrow Wilson High School in Camden, New Jersey. She asked appellant for directions to 35th Street. Appellant told the victim that he would take her there. After smoking some marijuana, provided by appellant, the two went to 35th street, but the victim could not find her friends' house. Appellant invited her to stay with him, his

[ 320 Pa. Super. Page 491]

    wife and seven-year-old daughter in Philadelphia. The two then went to Philadelphia, where they spent the evening visiting various bars and smoking marijuana. The victim claimed that appellant forced her to have sex with him. However, appellant was acquitted of the rape and assault charges. He was convicted of corrupting the morals of a minor for giving marijuana to the victim.

The sole issue raised on appeal is the sufficiency of the evidence. Appellant argues that the evidence is insufficient to prove that he was eighteen years of age or older at the time of the offense and, therefore, the judgment of sentence should be arrested and he should be discharged. While it is clear that a criminal conviction may not be based upon mere surmise or conjecture, the Commonwealth's burden in proving a criminal offense or the elements thereof may be sustained by means of wholly circumstantial evidence. Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981); Commonwealth v. Harrison, 289 Pa. Super. 126, 432 A.2d 1083 (1981). Furthermore, in testing the legal sufficiency of evidence to support a verdict, a reviewing court is not permitted to substitute its judgment for that of the fact finder, but is restricted to assessing the evidence in the light most favorable to the verdict winner and drawing all proper inferences that the evidence suggests in that party's favor. Commonwealth v. Smith, 490 Pa. 374, 416 A.2d 517 (1980); Commonwealth v. Jones, 291 Pa. Super. 69, 435 A.2d 223 (1981). It is within the province of the trier of fact, in a criminal prosecution, to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. So, too, the finder of fact is free to believe all, part or none of the evidence. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979); Commonwealth v. Lawton, 272 Pa. Super. 40, 414 A.2d 658 (1979). Our review of the record in this light discloses there is sufficient evidence to support the court's conclusion that appellant was at least eighteen years of age.

[ 320 Pa. Super. Page 492]

A person's age need not be proved only by direct testimony, but may also be proved by circumstantial evidence. Commonwealth v. Jones, 314 Pa. Super. 497, 461 A.2d 267 (1983). The victim testified that she accompanied appellant to several bars, where he drank beer and ordered sodas for her. She testified that they walked over to the Terrain, that appellant told her it was a "college dorm" and said he "used to live there." It would be reasonable to infer from the former testimony that appellant was at least the legal drinking age of twenty-one. One could reasonably infer from the latter testimony that appellant, who had lived in a "college dorm", had attended college and was therefore at least eighteen years of age.

Appellant testified that he worked in a bar called Drury Lane. He admitted accompanying the victim to three bars, including his place of employment. He stated that he was drinking beer, the victim was drinking sodas, and that he did not give the victim any alcohol because he knew she was not twenty-one. That testimony warrants an inference that appellant was at least twenty-one years of age at the time of the offense. In addition, appellant's physical appearance, which was observed ...


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