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COMMONWEALTH PENNSYLVANIA v. DONALD SMITH (11/03/83)

decided: November 3, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD SMITH, APPELLANT



No. 9 W.D. Appeal Docket, 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Fayette County, Criminal Div., dated January 6, 1983, entered at No. 43 of 1981

COUNSEL

Jack R. Heneks, Jr., Asst. Public Defender, Uniontown, for appellant.

Gerald R. Solomon, Dist. Atty., Uniontown, Marion MacIntyre, Sp. Deputy Atty. Gen., Harrisburg, John M. Zeglen, Asst. Dist. Atty., Uniontown, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, McDermott and Hutchinson, JJ., concur in the result.

Author: Nix

[ 502 Pa. Page 603]

OPINION

This is a direct appeal from a conviction of murder in the first degree wherein the jury directed the entry of the sentence of death. The appellant, Donald Smith, was determined to have killed a Mr. Lonnie Hinerman sometime between October 6th and 7th, 1980. The victim's body was discovered in the Cheat River on the morning of October 7, 1980, a short distance from the Ruane-Arnold Coal Tipple in Fayette County, Pennsylvania. After a review of the numerous assignments of error raised herein, we are of the view that the judgment of sentence must be vacated and a new trial granted.

The first claim that must be considered is appellant's charge that the quality of the evidence offered by the Commonwealth was of such a nature as to require the grant of his motion in arrest of judgment. Appellant argues that the Commonwealth's principal fact witnesses, Georgianne Lewis and Edith Smith, her sister, presented testimony so inconsistent and contradictory as to be incapable of supporting the verdict of guilt.

[ 502 Pa. Page 604]

Normally, the evidence is deemed to be sufficient where there is testimony offered to establish each material element of the crime charged and to prove commission of the offense by the accused beyond a reasonable doubt. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979); Commonwealth v. Liddick, 485 Pa. 121, 401 A.2d 323 (1979); Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978). The question of credibility is left to the jury and the verdict will not be disturbed if the jury determines the evidence is worthy of belief. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Hampton, 462 Pa. 322, 341 A.2d 101 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972).

We have, however, made exception to the general rule that the jury is the sole arbiter of the facts where the testimony is so inherently unreliable that a verdict based upon it could amount to no more than surmise or conjecture. See Commonwealth v. Farquharson, supra. See also, Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982); Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982); Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981); Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981); Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Commonwealth v. Holmes, 486 Pa. 415, 406 A.2d 510 (1979); Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977).

Traditionally under our system of jurisprudence, issues of credibility are left to the trier of fact for resolution. Commonwealth v. Hampton, 462 Pa. 322, 341 A.2d 101 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d

[ 502 Pa. Page 605337]

(1972); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972).

This concept, however, must be distinguished from an equally fundamental principle that a verdict of guilt may not be based upon surmise or conjecture. Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973); Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966). Following this principle, courts of this jurisdiction have recognized that where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure ...


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