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04/18/97 COMMONWEALTH PENNSYLVANIA v. ALLEN C.

April 18, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ALLEN C. YOUNG, APPELLANT



Appeal from the JUDGMENT OF SENTENCE December 15, 1995 In the Court of Common Pleas of Montgomery County, Criminal Division, No. 04248-94. Before TRESSLER and BROWN, JJ.

Before: Tamilia, Schiller and Montemuro,* JJ.

The opinion of the court was delivered by: Schiller

OPINION BY: SCHILLER, J.

FILED APR 18 1997

Circumstantial evidence, when properly marshalled, can be powerful enough to sustain the Commonwealth's burden to prove guilt beyond a reasonable doubt. While the lack of a weapon or other piece of evidence can often prove grist for novelists' plots, in real life these deficiencies can be overcome by sufficient circumstantial proof of guilt.

FACTS:

On July 22, 1994, appellant, Allen C. Young, was in attendance at "dollar night" at a bar located in Conshohocken, Montgomery County. The victim in this case, one Ranielle Ricard, was in attendance and, at one point during the night, allegedly dropped food crumbs from his plate onto appellant. Appellant reacted by hitting Ricard in the face with a "hard" object. Ricard went over to the bar to obtain ice for the swelling of his face. Approximately fifteen minutes later Ricard noticed appellant grinning at him. Ricard took offense at this and reacted by crossing the room, jumping on appellant, and knocking him to the floor. While on the floor Ricard began hitting appellant. All witnesses at the scene agreed that appellant was on the ground and Ricard was on top of him. The fight ended when a shot rang out and Ricard was struck with a bullet; the bullet entered his leg and lodged in his abdomen. No one saw appellant shoot Ricard, nor did they see a gun. Based on reports received, the police focused on appellant as a suspect; he was ultimately arrested and tried for aggravated assault and a variety of weapons charges.

At trial the Commonwealth's case was wholly circumstantial. The Commonwealth relied on appellant's proximity to the victim, the fact that the bullet entered by the leg and came to rest in the abdomen (indicating an upward trajectory), and powder burns on the victims pants (indicating close range discharge of the weapon): the latter two facts were introduced by stipulation. For his part appellant denied being the shooter or even possessing a weapon; he did not assert self defense. The jury did not accept appellant's profession of innocence.

Appellant now brings this appeal from the judgments of sentence entered by the Court of Common Pleas of Montgomery County following his convictions for aggravated assault and possession of an instrument of crime. We affirm.

Discussion

Appellant raises the following issues for our review: whether the evidence was sufficient to sustain the verdicts; whether the verdicts were against the weight of the evidence; whether the trial court erred in refusing to limit the Commonwealth's argument regarding the trajectory of the bullet; and whether comments made by the prosecuting attorney in his closing argument constituted reversible error.

Appellant first raises a sufficiency claim. Appellant's position regarding this claim can be summed up in the following argument: "there was insufficient evidence to convict appellant of Aggravated Assault with a deadly weapon and Possessing and Instrument of Crime because the Commonwealth's evidence on the critical issue of identity consisted solely of weak circumstantial evidence which could not support the Conclusion that appellant was the shooter beyond a reasonable doubt." Appellant's Brief in Support of Appeal pp. 10-11. Thus, appellant is not challenging the Conclusion that the shooting of Mr. Ricard constituted aggravated assault, or that the use of a gun in such a manner constituted possessing an instrument of crime; he is arguing only that the evidence in this case did not establish that he was the shooter or that he had the gun. *fn1

The test for establishing sufficiency is whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth, as verdict winner, are sufficient to establish all elements of the offenses beyond a reasonable doubt. Commonwealth v. Williams, 532 Pa. 265, 272, 615 A.2d 716, 719 (1992). In evaluating the evidence we note that the "Commonwealth's burden in proving a criminal offense or the elements thereof may be sustained by means of wholly circumstantial evidence." Commonwealth v. Thomas, 465 Pa. 442, 446-447, 350 A.2d 847, 849 (1976). See Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982).

In this case there was unrebutted evidence that the victim was shot at close range from a low angle. Appellant was not only the closest person to the victim, he was the only person underneath him. Appellant also had a motive for injuring the victim since they were engaged in an altercation. This circumstantial evidence clearly presented a permissible inference that the victim was shot by the ...


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