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COMMONWEALTH PENNSYLVANIA v. DAVID TURNER (12/14/89)

filed: December 14, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID TURNER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 87-412-414.

COUNSEL

George H. Newman, Philadelphia, for appellant.

Frances G. Gerson, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Wieand, Beck and Montgomery, JJ.

Author: Per Curiam

[ 390 Pa. Super. Page 219]

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

Appellant David Turner was arrested on February 2, 1987, for the murder of Nelson Diaz. Earlier that day, Rosemary Morales, a/k/a Rosa Diaz, responding to a knock at the door, found Turner who wanted to buy drugs from Diaz. Diaz refused to sell the drugs because Turner wanted to purchase a $20.00 bag, but had only $18.50. Subsequently, Morales heard a gunshot. She saw Turner chasing Diaz up the stairs while shooting at him. Turner then ran down the stairs, pointed the gun at Morales and said, "Bitch, if you tell, I'll kill you too." Thereafter, Morales found Diaz lying on the steps bleeding. She searched his pockets, but found no drugs. According to Morales, Diaz had at least twelve bags of drugs on his person before the shooting.

That evening, Morales gave a statement to the police. Prior to the preliminary hearing, a man threatened Morales' life if she testified in this matter. As a result, at the preliminary hearing, Morales said that she did not recall making a statement to the police because she had just finished "free-basing." She did state, however, that her identification of Turner was positive. At trial, Morales did not deny giving the statement to the police and her testimony was in accord with said statement.

Turner was found guilty of second degree murder and possession of an instrument of crime, generally. For the second degree murder charge, he was sentenced to life imprisonment. No penalty was imposed for the latter charge. Post-verdict motions were denied. This appeal followed.

Turner raises five issues for our review: (1) whether the evidence was insufficient to support a finding of second degree murder; (2) whether the trial court erred in failing

[ 390 Pa. Super. Page 220]

    to provide the jurors with additional instructions after they reported that they were deadlocked; (3) whether the trial court erred in denying Turner's motion for a mistrial or to strike the testimony of Assistant District Attorney Barbara Buba; (4) whether the trial court properly overruled Turner's objections to the prosecutor's closing argument; and (5) whether Pa.R.Crim.P. 1100 was violated.

First, Turner contends that the evidence was insufficient to support a conviction of second degree murder because there was no evidence that he committed a felony. He argues that the only evidence that a felony occurred was Morales' testimony, which at most invited speculation of a felony. Further, he asserts that there was no evidence of intent to rob Diaz. As a result, he urges this court to arrest judgment on the second degree murder conviction.

When reviewing the sufficiency of the evidence in a criminal case, the test is whether the evidence admitted at trial is sufficient to prove every element of the crime charged beyond a reasonable doubt. Commonwealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 182 (1980). The reviewing court views the evidence in a light most favorable to the Commonwealth as the verdict winner and accepts as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder could properly have based its verdict. Id.

In the instant case, the evidence clearly supports the verdict. Barbara Buba testified as to the statement made by Morales prior to trial. Morales' testified that Turner shot and killed Diaz after Diaz refused to sell drugs to Turner. She said that Diaz had twelve bags of heroin on his person before he was shot, which were missing after the shooting. Additionally, Turner admitted to being a drug user. This evidence, viewed ...


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