Commonwealth v. Thomas

329 A.2d 277, 459 Pa. 371, 1974 Pa. LEXIS 477
CourtSupreme Court of Pennsylvania
DecidedNovember 20, 1974
Docket420
StatusPublished
Cited by27 cases

This text of 329 A.2d 277 (Commonwealth v. Thomas) is published on Counsel Stack Legal Research, covering Supreme 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. Thomas, 329 A.2d 277, 459 Pa. 371, 1974 Pa. LEXIS 477 (Pa. 1974).

Opinions

OPINION

NIX, Justice.

This appellant, after trial by jury, was convicted of murder in the first degree, aggravated robbery and several other offenses which are not presently before us. After post-trial motions were dismissed by a court en [376]*376banc and the imposition of sentence1, the judgment of sentence under the murder indictment was appealed directly to this Court, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(1) (Supp.1974-75); the appeal from the sentence imposed on the aggravated robbery indictment was first had to the Superior Court. By order of this Court the appeal to the Superior Court was certified to this Court and consolidated with the pending appeal on the murder charge for argument and disposition. Act of July 31, 1970, P.L. 673, No. 223, art. V, § 503,17 P.S. § 211.503(c) (Supp.1974-75).

Turning first to appellant’s contention that the evidence was insufficient to support the verdicts, a review of the record convinces us that the claim is without merit. The testimony established that at or about 2:30 P.M. on January 17, 1970, the deceased, a driver-salesman for a meat concern, while in the process of discharging the duties of his employment, was accosted by two men. During the course of an attempted robbery the victim received a gunshot wound to the abdomen which resulted in his death. A seventeen-year-old youth testified that while he was standing waiting for a friend, he observed the incident. He stated that two men, one whom he identified as Michael Townsell 2 and another whom he could not identify, attempted to rob the victim; that Michael Townsell was “tussling” with the victim inside the truck while the other man stood outside the truck; and that Michael stepped out of the truck and the other individual entered the vehicle when the witness heard a [377]*377“pop”. As the two men fled the scene they passed the witness who observed the man he could not identify placing a gun inside his pants. The victim fell out of the truck and after regaining his footing entered a store holding his stomach and stated “I’ve been shot, call the police.” After leaving the store he collapsed on the highway where he was found by police.

The Commonwealth then produced a number of appellant’s associates to establish that he [appellant] was the other man who participated in the robbery.3 Bernice Wilson, who lived within a block of the scene, was approached by appellant on the street and directed by him to go into the backyard of her home, look under a box and pick up “what was there and take it in the house”. Complying with the request Bernice immediately returned to her home, went to the rear yard and discovered a gun in the place she had been instructed to look. She re-entered her home and secreted the gun on a shelf in the cellar.

Lloyd Milton Wilson, the brother of Bernice, was in his home with Anthony Gwaltney and Michael Townsell when appellant entered and “asked me [Milton] for his piece”. When Milton responded that he did not know where it was, appellant stated that Bernice knew “because he gave her the gun”. Milton went upstairs and advised Bernice of appellant’s request, whereupon Bernice directed the group to the cellar where the weapon was retrieved. Appellant placed the gun inside his belt and left the home.

Another friend of appellant, Michael Grant, testified that on the afternoon in question the appellant approached him and asked him to keep a .22 caliber black pistol. During this conversation, appellant told Grant that he had just shot a man. When Grant expressed [378]*378disbelief, appellant told Grant to watch the news on television that evening.

We have repeatedly stated that the test of sufficiency of evidence is whether, accepting as true all the evidence and all reasonable inferences therefrom, which if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971); Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968); Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85 (1964); Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963); Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960). Moreover, the evidence must be viewed in a light most favorable to the Commonwealth, the verdict winner, and the Commonwealth is entitled to all reasonable inferences arising from the evidence. Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971); Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970).4 Reviewing the record, in light of the aforementioned principles, we are satisfied that the evidence presented to the jury was more than sufficient to sustain their verdicts.

The second assignment of error to be considered is whether the trial court committed reversible error with reference to his rulings relating to the testimony of the Commonwealth’s witness, Anthony Gwaltney. The appellant claims prejudicial error occurred when the prosecution was permitted to impeach one of its own witnesses. Appellant further argues that the initial error [the allowance of a plea of surprise] was compounded by the latitude of cross-examination permitted.

[379]*379The fundamental rule in this jurisdiction is that it is within the sound discretion of the trial court to decide whether counsel may exercise the right of cross-examination of his own witness. Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973). In recent years this Court has announced several principles for the trial courts to follow in the exercise of this discretion. First, before counsel may cross-examine his own witness on a plea of surprise the testimony given by the witness must be unexpected. Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957):

“ ‘Generally, to entitle the party calling the witness to relief from the situation caused by the witness’s adverse testimony, it is essential that such party be really surprised by such testimony.’ . . . Surprise, in its legal connotation, does not embrace disappointment or a feeling of frustration on the part of the one seeking to have a witness testify otherwise than he has indicated he will do.” Id. at 253-254, 133 A.2d at 193. Secondly, the testimony of the witness must be contra-

dictory to statements the witness had made earlier. Commonwealth v. Bynum, 454 Pa. 9, 309 A.2d 545 (1973); Commonwealth v. Tucker, 452 Pa. 584, 307 A.2d 245 (1973); Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973); Commonwealth v. Stafford, 450 Pa. 252,

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354 A.2d 875 (Supreme Court of Pennsylvania, 1976)
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353 A.2d 50 (Superior Court of Pennsylvania, 1975)
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340 A.2d 447 (Supreme Court of Pennsylvania, 1975)
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Bluebook (online)
329 A.2d 277, 459 Pa. 371, 1974 Pa. LEXIS 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-thomas-pa-1974.