Com. v. Kennedy

• Decision Date: 08 February 1980
• Citation: 271 Pa.Super. 1,411 A.2d 1249
• Parties: COMMONWEALTH of Pennsylvania v. James KENNEDY, Appellant.
• Court: Pennsylvania Superior Court

Page 1249

411 A.2d 1249

271 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. James KENNEDY, Appellant.

Superior Court of Pennsylvania.

Argued July 17, 1979.

Filed Oct. 12, 1979.

Petition for Allowance of Appeal Denied Feb. 8, 1980.

John Paul Curran, Philadelphia, for appellant.

Steven J. Cooperstein, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, NIX and WEKSELMAN, JJ. ^*

NIX, Judge:

Appellant Kennedy was convicted for first degree murder and possession of an instrument of crime following a bench trial and sentenced to life imprisonment. He raises five issues for our review, the first of which concerns the sufficiency of the evidence to support his convictions.

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the (trier of fact) could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.

Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1978).

The record indicates that there was sufficient evidence to convict appellant of first degree murder. Pamela Brown, the sister of the victim, testified that the morning of May 4, 1976, the doorbell rang three times, a ring appellant used, and that her brother James ran downstairs to answer it. Ms. Brown said that she recognized the visitor's footsteps as being those of appellant because he had lived in their home during a prior summer. After appellant entered, Ms. Brown heard talking but could not understand what was being said. After about five minutes, she heard a shot followed by five more shots. She ran downstairs and outside and saw appellant fleeing on a ten-speed bicycle. She called to him and asked "Jazzmo, why did you do this to James?" Appellant, whose nickname is Jazzmo, looked around but kept going.

James Williams, who lived across the street from the Browns' house, testified that he was standing at an open window on the first floor of his house talking with a lady standing on the sidewalk when he heard two shots and saw a boy run out of the Browns' house and jump on a bike. He saw and heard Ms. Brown yell "Call the law. Call the Law." Mr. Williams identified appellant at trial as the person he saw leave the house and flee. Police officers found James Brown dead with a $5 bill and a .38 caliber revolver with six spent casings in it lying near the body. The parties stipulated that the cause of death was six gunshot wounds to the head and trunk of the victim fired from close range. Appellant testified in his own behalf and denied that he had either killed the victim or had seen him the day of the murder.

Appellant contends that there was insufficient evidence to identify him as the killer and he challenges the identification by Ms. Brown and Mr. Williams as being too speculative because neither saw the killer's full face. These contentions are without merit. "There is no requirement that a killing, or a first degree murder for that matter, be proven by positive eyewitness testimony." Commonwealth v. Comer Glass, --- Pa. ---, ---, 405 A.2d 1236, 1239 (1979). Appellant's contentions revolve around issues of credibility which are left to the fact finder to resolve. Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1976). It is also argued that Ms. Brown's identification of him as the killer based on his footsteps is too speculative, citing Commonwealth v. Paschall, 214 Pa.Super. 474, 257 A.2d 687 (1969) as support. In Paschall the Court determined that an identification based on the "build" of the assailant is weaker than a facial or voice identification, and in the absence of some deformity in defendant's build, a qualified identification based thereon could not serve as the sole basis for a conviction.

If the jury had been required to rely only upon Ms. Brown's recognition of appellant's footsteps, the Paschall rationale might well be applicable, absent a showing that there was some unique or distinguishing feature as to appellant's walk. However, this was not the case. In addition to the recognition of appellant's footsteps, Ms. Brown knew appellant for a substantial period of time prior to the incident and recognized his manner of ringing the bell. Immediately following the shots she observed appellant riding away from the home on a bike. When she called to appellant by name, he responded by turning in her direction and then proceeded to leave the area. Finally, the testimony of Mr. Williams established that the person on the bike was in fact the same person who emerged from the house immediately after the shots were fired. This factual situation is obviously distinguishable from that discussed in Paschall, and provided ample basis for a jury finding that appellant had fired the shots.

Appellant's second contention of error is that the judge who sat as fact finder improperly considered, in finding appellant guilty, evidence concerning the gang affiliation of the appellant and defense witnesses although this information had been objected to and the objection sustained by the Court during trial. Appellant contends that the Court, by describing the killing as an "assassination-type" killing implied that the killing was gang related. This argument is specious. Where an individual is shot six times at close range without any evidence of provocation, it is appropriate to describe it as an assassination, implying only an intentional and premeditated homicide.

Appellant's third contention is that he was denied the effective assistance of counsel. Appellant's present counsel ¹ contends that trial counsel was ineffective for failing to demand an offer of proof as to Mr. Williams' proposed testimony, for failing to demand a line-up to test the accuracy of Mr. Williams' identification of appellant in less suggestive circumstances, and for failing to re-instate his suppression motion as to Mr. Williams' identification of appellant.

Trial counsel was not ineffective for failing to demand an offer of proof as to Mr. Williams' proposed testimony. When the Commonwealth called Mr. Williams to testify, trial counsel requested and was given a copy of the witness' recorded statement as well as a recess in the trial for him to review the statement. Under these circumstances, a request for an offer of proof as to the witness' testimony was unnecessary since counsel then knew, based on the witness' statement, the content of Mr. Williams' proposed testimony. Accordingly, trial counsel was not ineffective for failing to demand an offer of proof.

Appellant's contention that his trial counsel was ineffective for failing to demand a line-up is based upon the Superior and Supreme Courts' opinions in Commonwealth v. Sexton, 246 Pa.Super. 30, 369 A.2d 794 (1977), (reversed) 485 Pa. 17, 400 A.2d 1289 (1978).

This argument ignores the fact that prior to trial the defense was not aware of any identifying witnesses other than the victim's sister, who knew appellant. ² A request for a Sexton type line-up by Ms. Brown would have only bolstered her testimony since there was no question that she could identify appellant in a lineup. Moreover, it is not argued that counsel was ineffective for not knowing in advance of trial that the witness, Mr. Williams, would identify appellant. Rather, the thrust of this contention is that counsel should have requested that the trial be interrupted prior to his being called to the stand to have his identification tested by a line-up procedure. Clearly, the Supreme Court's decision in Sexton provided no authority for the novel principle that an accused has the right to require a line-up in the midst of trial.

Appellant's allegation that trial counsel was ineffective for failing to move to suppress Mr. Williams' identification testimony must also fail. Although "(t)he failure to file a suppression motion may be evidence of ineffective assistance of counsel, . . . if the grounds underpinning the suppression motion or objection are without merit, counsel will not be deemed to have been ineffective in failing to so...