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COMMONWEALTH PENNSYLVANIA v. EDWARD P. KALE (08/10/84)

filed: August 10, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD P. KALE, SR., APPELLANT



No. 179 Harrisburg 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lebanon County at No. 57-82.

COUNSEL

Bradford H. Charles, Lebanon, for appellant.

Robert W. Feeman, District Attorney, Lebanon, for Com. appellee.

Wickersham, Olszewski and Hoffman, JJ.

Author: Wickersham

[ 331 Pa. Super. Page 157]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Lebanon County. Appellant, Edward P. Kale, was found guilty after a jury trial of criminal attempt to commit burglary.*fn1 Post trial motions were filed and subsequently dismissed. On April 19, 1983, the Honorable Robert J. Eby sentenced appellant to serve a term of imprisonment of not less than three (3) to not more than ten (10) years. This timely appeal followed.

On appeal, appellant argues that: (1) the evidence was insufficient to support the verdict or, alternatively, the verdict was against the weight of the evidence; (2) his rights to counsel and due process were violated when he was represented at trial by an attorney whom he had previously alleged was incompetent; and (3) his trial counsel

[ 331 Pa. Super. Page 158]

    was ineffective. While we find appellant's first two issues to be meritless, we are unable to decide appellant's ineffectiveness claims on the record before us. Therefore, we must remand to the lower court for an evidentiary hearing on appellant's ineffectiveness claims.

Appellant first argues that the evidence was insufficient to support the verdict.

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, 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. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Commonwealth v. Frederick, 327 Pa. Super. 199, 210, 475 A.2d 754, 760 (1984), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

Instantly, appellant was found guilty of attempting to burglarize a jewelry store. The lower court succinctly ...


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