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05/07/97 COMMONWEALTH PENNSYLVANIA v. KENNETH F.

May 7, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH F. OLIVER, APPELLANT



Appeal from the Judgment of Sentence November 6, 1995, in the Court of Common Pleas of Centre County, Criminal Division, No. 1994-1375. Before GRINE, J.

Before: Cirillo, P.j.e., Popovich & Hester, JJ. Opinion BY Hester, J.

The opinion of the court was delivered by: Hester

OPINION BY HESTER, J.:

FILED MAY 7 1997

This direct appeal by appellant, Kenneth Oliver, is from the judgment of sentence of two to four years imprisonment entered following his conviction by a jury of three counts of furnishing alcohol to minors and two counts of corruption of the morals of minors. We affirm.

Appellant was charged with furnishing alcohol to minors Wes Dietrich, Amber Day, Lemuel Crater, and Marcia Bressler on May 21, 1994, and corrupting the morals of Amber Day and Lemuel Crater. In the early morning hours of May 22, 1994, a vehicle driven by Wes Dietrich collided with a vehicle driven by Adam Nichols. Amber Day, a passenger in the Nichols vehicle, died as a result of injuries suffered in the crash. The drivers of both vehicles faced criminal charges resulting from that accident in Howard, Pennsylvania. Those charges are not involved herein.

Appellant raises the following issues for our review:

Whether the sentencing court abused its discretion in imposing an excessive sentence?

Whether the evidence was insufficient to establish the crimes for which the defendant was convicted?

Whether trial counsel was ineffective for failing to seek a cautionary instruction that the jury was not to use a police officer's recollection of a statement by a Commonwealth witness as substantive proof of that statement?

Whether the inconsistencies in the verdicts require arrest of judgment?

Appellant's brief at 9.

We begin by addressing the sufficiency of the evidence. Appellant notes that the only evidence offered by the Commonwealth that the beverages provided to the minors were alcoholic beverages was the testimony of Lemuel Crater and Marcia Bressler. Under Commonwealth v. Erney, 212 Pa. Super. 174, 239 A.2d 818 (1968) "a minor's testimony and observations of taste and smell are insufficient to prove the alcohol content of the beverage in question." Appellant's brief at 24. Thus, appellant contends the evidence was not sufficient to support his convictions.

Our standard for reviewing the sufficiency of the evidence is well-settled.

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the fact-finder could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976).

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988); see also Commonwealth v. Bowser, 425 Pa. Super. 24, 624 A.2d 125 (1993); Commonwealth v. Blystone, 421 Pa. Super. 167, 617 A.2d 778 (1992); Commonwealth v. Scott, 376 Pa. Super. 416, 546 A.2d 96 (1988). In applying this test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. See Commonwealth v. Blystone, supra. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. See Commonwealth v. Nicotra, 425 Pa. Super. 600, 625 A.2d 1259 (1993). Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Id.

Commonwealth v. Cassidy, 447 Pa. Super. 192, 194-95, 668 A.2d 1143, 1144 (1995).

Selling or furnishing liquor or malt or brewed beverages to minors, 18 Pa.C.S. ยง 6310.1 ...


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