No. 157 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County, No. 354 of 1980.
William F. Scarpitti, Jr., Assistant Public Defender, Erie, submitted a brief on behalf of appellant.
Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
Cavanaugh, Brosky and Montgomery, JJ. Brosky, J., files a concurring opinion.
[ 318 Pa. Super. Page 493]
This appeal arises from appellant's conviction by a jury of aggravated assault*fn1 and his subsequent sentence of one and one-half (1 1/2) to five (5) years imprisonment, a fine of three hundred dollars ($300.00) and restoration of property taken or payment of its value.
Appellant raises ten assignments of error: (1) The sentencing court erred in merely noting considerations for sentence imposed without further explaining the thought processes and evaluations it made; (2) The verdict was against the weight of all credible evidence; (3) The jury verdict was contrary to the law as guilt was not proven beyond a reasonable doubt; (4) Trial court erred in permitting the prosecutor to examine the victim as to prior criminal acts occurring between appellant and the victim approximately three years prior to the subject incident, from which testimony the finder of fact could make the erroneous
[ 318 Pa. Super. Page 494]
inference that appellant was guilty of the subject criminal offense; (5) The trial court erred in not granting motion for mistrial due to prejudice caused by testimony regarding prior unrelated criminal activity; (6) Defense counsel was ineffective for failing to timely object to victim's prejudicial testimony as set forth in claim four (4) above; (7) Sentencing court erred in not considering character of appellant by not permitting him to allocute on his own behalf; (8) Defense counsel was ineffective for failing to protect appellant's right to allocution; (9) Defense counsel was ineffective for failing to ensure that appellant received adequate colloquy of appellate rights, specifically the right to timely file a motion for reconsideration of sentence; and, (10) Defense counsel was ineffective for failing to timely file a motion for reconsideration. We affirm the conviction; and, we vacate the sentence and remand for further proceedings.
On November 21, 1979, the hydrocephalic victim was beaten by appellant and his co-defendant Eugene Wright.*fn2 As a result of his injuries, the victim was hospitalized until December 24, 1979. Following an interview with the victim conducted by investigating officers on December 28, 1979, warrants were issued for the arrest of appellant and his co-defendant.*fn3 Appellant was taken into custody on January 2, 1980, and after questioning was charged with aggravated assault.
Appellant alleges that the verdict was against the weight of all credible evidence, and contrary to the law as his guilt was not established beyond a reasonable doubt. In evaluating this claim, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, there is sufficient evidence to have enabled the jury to find every element of the offense beyond a reasonable doubt. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979).
[ 318 Pa. Super. Page 495]
While making that determination, it is clear that the weight to be accorded the evidence and the credibility of the witnesses is the province of the factfinder. Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975).
Appellant argues that inconsistencies in the victim's testimony rendered the evidence insufficient as he was the only witness who could connect him to the assault. The mere fact that there are some inconsistencies in a witness' testimony is not alone sufficient to destroy the Commonwealth's case. Commonwealth v. Williams, 290 Pa. Super. 209, 434 A.2d 717 (1981). The trier of fact is to resolve any inconsistencies which may exist, Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d ...