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COMMONWEALTH PENNSYLVANIA v. RONALD HENRY (06/01/83)

submitted: June 1, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
RONALD HENRY, APPELLANT



No. 3023 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 2324-2326, January Term, 1981.

COUNSEL

Rosemarie T. Kenkelen, Philadelphia, for appellant.

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

Rowley, Wieand and Beck, JJ.

Author: Wieand

[ 323 Pa. Super. Page 262]

Ronald Henry was tried non-jury and convicted of simple assault*fn1 in connection with the stabbing of his brother. He was acquitted of related charges of possession of an instrument of crime,*fn2 recklessly endangering another person,*fn3 and aggravated assault.*fn4 On direct appeal from the judgment of sentence, he contends (1) that there was insufficient evidence to convict him of simple assault; (2) that the trial court erred in denying his motion to dismiss for a violation of Pa.R.Crim.P. 1100; (3) that delay of the victim in reporting the alleged incident to the police resulted in prejudice to appellant requiring dismissal of the charge; and (4) that the trial court erred in failing to articulate specific reasons for the sentence imposed. These contentions have no merit; and, therefore, we affirm the judgment of sentence.

In determining the sufficiency of the evidence, "we view the entire record in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom favorable to the Commonwealth, determine whether there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt." Commonwealth v. Pronkoskie, 498 Pa. 245, 248, 445 A.2d 1203,

[ 323 Pa. Super. Page 2631204]

(1982). See also: Commonwealth v. Davis, 308 Pa. Super. 204, 216, 454 A.2d 92, 98 (1982); Commonwealth v. Price, 306 Pa. Super. 507, 511, 452 A.2d 840, 842 (1982). "[I]t 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 fact finder is free to believe all, part or none of the evidence." Commonwealth v. Nunez, 312 Pa. Super. 584, 586, 459 A.2d 376, 377 (1983), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

The testimony of Tyrone Henry, appellant's brother, was that on January 9, 1981, appellant had entered the bedroom where Tyrone was sleeping and repeatedly stabbed Tyrone in the back and leg with a twelve inch long cooking fork. Tyrone struggled with appellant and was able to escape. He went to a hospital where he received treatment and was admitted for one day. He told authorities at the hospital that he had been injured when he fell on a picket fence. He did this, he said, to protect his brother who was then on federal parole. On January 16, however, Tyrone apparently changed his mind, for he then filed a complaint with the police. Criminal charges against appellant followed.

Appellant contends that Tyrone's prior inconsistent statement at the time of admission to the hospital rendered his trial testimony unworthy of belief. He also produced evidence that at the preliminary hearing Tyrone had identified the offending weapon as an ice pick. The rule of law applicable to testimonial inconsistencies was stated in Commonwealth v. Williams, 290 Pa. Super. 209, 434 A.2d 717 (1981), as follows:

"If a witness has made inconsistent or contradictory statements they may be used to attack the witness' credibility. Commonwealth v. Bean, 244 Pa. Super. 368, 372, 368 A.2d 765, 767 (1976); Commonwealth v. Lenker, 202 Pa. Super. 538, 541, 198 A.2d 347, 349 (1964); Commonwealth v. Bartell, 184 Pa. Super. 528, 537, 136 A.2d 166, 172 (1957). Prior ...


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