Commonwealth v. MacK

850 A.2d 690, 2004 Pa. Super. 158, 2004 Pa. Super. LEXIS 826
CourtSuperior Court of Pennsylvania
DecidedMay 11, 2004
StatusPublished
Cited by42 cases

This text of 850 A.2d 690 (Commonwealth v. MacK) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. MacK, 850 A.2d 690, 2004 Pa. Super. 158, 2004 Pa. Super. LEXIS 826 (Pa. Ct. App. 2004).

Opinion

OPINION BY

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County on November 4, 2002, following Appellant’s conviction by the court of theft, 1 simple assault, 2 recklessly endangering another person, 3 receiving stolen property, 4 and possessing an instrument of crime. 5 Herein, Appellant contends that there was insufficient evidence to support his conviction, the verdict was against the weight of the evidence, and the court abused its discretion in denying the Commonwealth’s motion to disqualify his trial counsel. We affirm the judgment of sentence.

¶ 2 The trial court aptly summarized the testimony adduced at trial as follows:

*692 On September 6, 1998, at approximately noon, [Simon Coates (“Victim”) ] arrived at his girlfriend’s apartment, who was not home at the time, after an attempt to purchase a car had fallen through. He was carrying $3,800 in cash to pay for the car and a firearm which he was licensed to carry. [Victim] had appraised [sic] his girlfriend, Lakie-sha Scott, of his plan to purchase the used car and that he would be paying for the car in cash. When the deal feE through [Victim] contacted Ms. Scott to inform her that he did not purchase the car and then proceeded to her apartment on the 4600 block of Chester Avenue, where he waited between forty-five minutes and two hours for her to return.
Around 2:00 P.M. Ms. Scott arrived at her apartment complex with [Appellant], also her boyfriend, and the Co-Defendant Ronald Horn, [Appellant’s] cousin. Mr. Horn and [Appellant] waited in the car while Ms. Scott ran upstairs. When Ms. Scott arrived upstairs she asked [Victim] to go down and pay the ‘hack’ ten doUars. [Victim] took thirty dollars from his large stash of cash, leaving the remaining behind, and proceeded downstairs by himself to pay the ‘hack.’ When ¡[Victim] reached the vestibule area he was confronted by [Appellant], whom [Victim] assumed was the ‘hack.’
[AppeUant] snatched the ten dollars from [Victim] and began to curse. Within seconds, Mr. Horn walked into the vestibule area. [Victim] moved from the vestibule to the outside of the apartment where he was immediately hit by Mr. Horn and then by [Appellant]. [Victim] observed the butt of a handgun in [Appellant’s] pocket. Mr. Horn and [Victim] fell to the ground as [Victim] was trying to hold Mr. Horn’s hands, in an effort to both stop Mr. Horn from punching him and from producing whatever he was reaching for in his pocket. While [Victim] was on the ground tussling with Mr. Horn, [Appellant] removed [Victim’s] gun from [Appellant’s] holster around his waist. [AppeUant] proceeded to hit [Victim] on the back of the head with the gun, to point the gun at [Victim], and to pull the trigger. Lucidly for [Victim], the first round was not chambered. The incident continued with Mr. Horn and [Victim] on the ground fighting whüe [Appellant] continued to kick [Victim], to hit [Victim] with the gun, and to point and fire the gun unsuccessfully two more times. Also, whüe [Victim] was on the ground, the remaining twenty doUars fell out of his shirt pocket and [AppeUant] picked up and took the money.
When the police arrived on the seen [sic], they were informed that [Appellant] and Mr. Horn had left the area and they observed that [Victim] was injured.

Trial Court Opinion filed 8/5/03 at 3-5 (citations to trial transcript omitted).

¶ 3 Although a warrant was issued for the arrest of AppeUant on September 12, 1998, he remained a fugitive until January 2, 2001, when he was located by the police and arrested. He was charged with numerous offenses in connection with the September 6, 1998 incident. AppeUant waived his right to a jury trial and, following a trial before the court, he was found guüty of theft, simple assault, recklessly endangering another person, receiving stolen property, and possessing an instrument of crime. On November 4, 2002, he was sentenced, inter alia, to concurrent nine (9) to twenty-three (23) month terms of imprisonment for the charges of theft and recklessly endangering another person, and a five (5) year term of probation *693 for the charge of possessing an instrument of crime. 6 The present appeal followed. 7

¶ 4 Appellant’s first claim is that the evidence adduced at trial was insufficient to support his convictions. Specifically, he contends that the Commonwealth’s case relied upon the testimony of Victim, which allegedly was “incredible and unreliable.” Brief of Appellant at 8.

¶ 5 This Court has stated that:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence.

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001) (internal citations and quotation marks omitted).

¶ 6 In the case sub judice, Appellant acknowledges that “a review of the notes of testimony of the trial evidence presented by the prosecution ‘appears’ to establish the elements of the crimes and the identity of the appellant as a perpetrator.... ” Brief of Appellant at 9. He argues, however, that the prosecution’s sole evidence of guilt was from Victim, who was unreliable and incredible. Id.

¶ 7 As noted above, it is for the fact finder to make credibility determinations, and the finder of fact may believe all, part, or none of a witness’s testimony. Commonwealth v. Burns, 765 A.2d 1144 (Pa.Super.2000). In this case, the court was free to accept the Commonwealth’s version of the events as testified to by Victim.

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Bluebook (online)
850 A.2d 690, 2004 Pa. Super. 158, 2004 Pa. Super. LEXIS 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mack-pasuperct-2004.