Appeal from the Judgment of Sentence entered February 6, 1987 in the Court of Common Pleas of Mercer County, Criminal Division, at No. 693 Criminal 1985.
Michael J. Wherry, Grove City, for appellant.
Kenneth K. McCann, Assistant District Attorney, Mercer, for Com., appellee.
Brosky, Del Sole and Hoffman, JJ. Hoffman, J., concurs in the result. Brosky, J., files a dissenting statement.
[ 374 Pa. Super. Page 214]
Appellant and a co-defendant, Faith Swingle, were tried by a jury for crimes committed in association with the knife-point robbery of a gasoline/convenience store owner. A third co-defendant, Brian Collins, pled guilty to a charge of robbery, and a fourth individual, Terry Mays, who testified against Appellant at trial, was not tried. After Appellant's timely filed post-trial motions were denied, he was sentenced to serve 3-6 years for his robbery conviction. Concurrent sentences of 1-2 years were imposed based on convictions for theft and conspiracy. As noted by the sentencing court, Appellant's sentence "includes therein an addition of twelve (12) months on the minimum sentence of three (3) years and twelve (12) months on the maximum sentence of six (6) years as a result of the weapons enhancement".
In this appeal, Appellant challenges the verdict as being against the weight of the evidence. He also maintains that the trial court erred by ruling that certain testimony sought to be elicited from Faith Swingle was inadmissible hearsay. Appellant's final contention concerns the court's failure to grant a mistrial sua sponte. Although we find no merit to any of these issues, we must vacate that portion of Appellant's sentence which was imposed under the Deadly Weapon Enhancement provisions of the Sentencing Guidelines.
[ 374 Pa. Super. Page 215]
The first argument made by Appellant addresses the weight of the evidence used to convict him. Appellant points out that "the jury was faced with the dilemma of whether or not to believe the testimony of Terry Mays or (defense witnesses) Faith Swingle and Brian Collins". Appellant's Brief at 13. Appellant, who put forth an alibi defense, presented additional witnesses who testified as to his whereabouts at the time in question. The jury apparently believed the testimony of Terry Mays who was present at the scene and later detailed Appellant's involvement. Appellant maintains that Mr. Mays was unworthy of belief because of inconsistencies which were apparent in his testimony. Appellant reasons that the verdict of the jury was against the fair weight of the evidence since it was premised on the "unreliable" testimony of Mr. Mays rather than the testimony of the witnesses called by the defense.
It is true that where evidence offered in support of a guilty verdict is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, an appellate court is justified in finding that it was reversible error to allow the jury to return a guilty verdict based thereon. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Bennett, 224 Pa. Super. 238, 303 A.2d 220 (1973). In the present case the contradictions in the testimony of Terry Mays to which Appellant points are not such as to require us to order a new trial.
The contradictions (appellant) relies on are discrepancies between information (the witness) gave police when he was arrested and his testimony at trial. (Appellant's) reliance on contradictions between (the witness') out-of-court statements and his in-court testimony is misplaced, for such discrepancies concern credibility and do not render impossible rational consideration of the evidence presented. A new trial may be appropriate in a case where the testimony at trial is hopelessly contradictory, but in this case (the witness') testimony at trial was consistent.
Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234, 240 (1982). Further, the fact that ...