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COMMONWEALTH PENNSYLVANIA v. BRUCE JOHNSON (03/21/88)

submitted: March 21, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
BRUCE JOHNSON, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 204-207 April Term, 1985.

COUNSEL

Bruce A. Franzel, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, Montgomery and Hester, JJ.

Author: Wieand

[ 376 Pa. Super. Page 124]

Bruce Johnson was tried non-jury and was found guilty of driving while under the influence of alcohol, homicide by vehicle while driving under the influence of alcohol, simple assault, and recklessly endangering another person.*fn1 Timely filed post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of not less than three (3) years nor more than six (6) years for homicide by vehicle, to run concurrently with a term of imprisonment of not less than three (3) months nor more than six (6) months, plus a fine of $300, for driving while under the influence of alcohol.

On direct appeal from the judgment of sentence, Johnson argues that the evidence was insufficient to sustain the trial court's finding. The evidence was insufficient, he argues, because (1) the Commonwealth failed to establish that he was under the influence of alcohol, (2) the evidence failed to establish that he was incapable of safe driving or that his ingestion of alcohol was causally connected with the accident, and (3) the Commonwealth failed to show that he had been convicted of driving while under the influence of alcohol before he was tried and convicted of homicide by vehicle while under the influence of alcohol. He also contends that driving while under the influence of alcohol merged with the conviction for homicide by vehicle while under the influence of alcohol for sentencing purposes and

[ 376 Pa. Super. Page 125]

    that separate sentences imposed by the trial court, therefore, were illegal. We find no merit in these arguments and affirm the judgment of sentence.

On appeal, our standard for evaluating a challenge to the sufficiency of the evidence involves several steps:

First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. This inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient.

Commonwealth v. Maldonado, 343 Pa. Super. 154, 158, 494 A.2d 402, 404 (1985), quoting Commonwealth v. Herman, 271 Pa. Super. 145, 148-149, 412 A.2d 617, 619 (1979). The evidence must be sufficient to insure that the verdict is not based on guess, conjecture or surmise. However, the weight to be given the evidence and issues of witness credibility are for the trier of fact, who is free to believe all, part, or none of the evidence presented. Commonwealth v. ...


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