Appeal from the Superior Court No. 02845 Philadelphia 1984 which affirmed the Judgment of Sentence of the Court of Common Pleas of Philadelphia County C.P. # 524. 525 April Term 1984. Pa. Super. , 503 A.2d 455 (1985).
Perry DeMarco, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Division, Susan Willcox, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., filed a dissenting opinion in which Hutchinson, J., joined.
The issue before the Court in this case is whether there was sufficient evidence to support the jury's finding of appellant's guilt of possessing an instrument of crime.*fn1
On August 24, 1984, after a trial by jury, appellant Anselmo C. Gonzalez was acquitted of murder and voluntary manslaughter, but found guilty of possessing an instrument of crime. These charges arose out of the shooting death of Juan Martinez, a member of a Philadelphia street gang. Post-trial motions in arrest of judgment and for a new trial were denied and, on September 26, 1984, appellant was sentenced to a term of imprisonment of one to three years. Appellant's motion to modify sentence was denied on October 5, 1984.*fn2 On direct appeal in Superior Court appellant challenged the sufficiency of the evidence supporting his conviction, and asserted error in the trial court's refusal to grant his motion for a mistrial after the prosecutor questioned appellant concerning an uncharged offense. Superior Court affirmed the judgment of sentence by per curiam order, 350 Pa. Super. 631, 503 A.2d 455 (1985), and, in the memorandum opinion in support of that order, relied on the analysis in the trial court's opinion. We granted appellant's petition for allowance of appeal.
In reviewing appellant's challenge to the sufficiency of the evidence, "we must view that evidence in the light most favorable to the verdict winner, here the Commonwealth;
all reasonable inferences which may be drawn from the evidence must be drawn favorably to the verdict winner as well." Commonwealth v. Burns, 490 Pa. 352, 354, 416 A.2d 506, 507 (1980).
The record in this case reveals the following facts. Appellant owned a small variety store in a high crime area of Philadelphia. On March 19, 1984, appellant was working in his store: his wife and ten year old daughter were also present. (The family lived in an apartment above the store.) Juan Martinez and another member of a gang called the Outlaws entered the store and threatened to steal a radio from a customer, Timmy. Appellant forced the gang members out of his store saying, "Don't come around here messing with my customers. I'm going to kill somebody." When Timmy left the store a few minutes later, the gang, now numbering at least 8 or 9, chased Timmy in an attempt to again steal the radio. According to appellant, Juan Martinez, before joining in the chase, threatened appellant, "I'm coming back for you."
Martinez returned five minutes later with 15 to 20 members of his gang and approached appellant's store. Appellant, in the doorway of his store, shot and killed Martinez with a sawed-off shotgun. According to Commonwealth witnesses, Martinez was ...