*2 ROWLEY, Before TAMILIA, SOLE and JJ. TAMILIA, Judge: 27, 1985,
On November appellant, III, Paul J. Lapcevich, arson, was convicted of by jury 3301(c)(3), 18 Pa.C.S. § and arson, criminal to commit conspiracy 18 Pa.C.S. 903.1 § Post-trial motions were denied judgments and of sentence were entered in which appellant was sentenced to a term of (IV2) (10) incarceration of one and one-half to ten years for (1) (6) the arson conviction and one to six years for the conviction, conspiracy to run both consecutively, well as Aрpellant proceeded jury had charges to a trial on the same 22, 1983, however, February February a mistrial was declared on after the failed to arrive at a verdict. This resulted in appellant's requesting charges jeop- dismissal of the based on double ardy grounds, by which motion was denied both the lower court and appeal. our Court on ordered to $11,507.06. make restitution in the amount of Appellant brought a timely motion to modify sentence on 14, 1986, August which was denied by the trial cоurt by August Order dated 1986. A timely appeal to this Court September 3, was filed on argues first evidence presented at
trial was insufficient as a matter of law to support
convictions because the allegedly unsupported and uncor
roborated
physical
perpetrator
of the
crime,
Atwell,
uncertain,
David
was so
vague, contradictory
and inconsistent so as to
utterly
be
lacking
credibility.
scope
Our
of review for evaluating claims based on the
sufficiency
whether,
of the
is
evidence
viewing the evidence
in the light most
Commonwealth,
favorable
drawing all reasonable inferences
to the
favorable
Common
wealth, there is sufficient evidence to find every element of
*3
the crime
beyond
reasonable doubt. Commonwealth v.
Harper, 485 Pa.
572,
403
(1979);
A.2d 536
Commonwealth
v. Griscavage,
141,
336 Pa.Super.
(1984).
Atwell had been arson, tried and found guilty of criminal conspiracy and trial, criminal mischief in an earlier in which he did not testify, concerning the same in question fire here. case, In this Atwell testified conspired that he appel- with lant to set the fire for from pay appellant at a time when appellant would be out-of-town and forming an in alibi. As Goldblum, suрra, appellant’s contention is not that this insufficient, evidence is since Atwell’s testimony alone enough convict, would be to but that Atwell’s testimony must be omitted from consideration because it was un- certain, contradictory and inconsistent, leaving the convic-
154 tion supported by inadequate circumstantial at evidence best.
Most of appellant the contradictions relies dis- upon are crepancies testimony between Atwell’s trial and pre-trial his statements to insurance investigators prior well as his statements oath. under Brief for at We 6-8. Goldblum, supra, appellant’s argument find by controlled 498 Pa. at A.2d at in the Supreme which stаted: on
[Appellant’s] reliance contradictions between wit- [the out-of-court his testimony statements in-court ness’] misplaced, is for such concern discrepancies credibility and do impossible not render rational consideration A presented. may evidence new trial be in a appropriate аt trial case where the is hopelessly contra- dictory, but in this case testimony at trial [the witness’] Appellate was consistent. reverse courts convictiоns upon contradictory based unreliable or evidence in order to prevent upon from being verdict based mere con- jecture product ‘rathеr than the of reasonable reconcilia- tion.’ Such a would not purpose by removing be served jury’s evidence from the consideration it merely becаuse challenged by (Em- was defense as to its credibility. phasis original).
Thus we appellant’s argument find meritless. is Credibility a factual is issue and most appropriately by resolved fact, motions; trier of subject post-trial review assess- ment of a credibility appropriate witness’ is not an function Cristina, review. Commonwealth of appellate Pa. *4 Beckham, 44, (1978); Commonwealth 391 A.2d 1307 349 Pa.Super. 430, (1986). A.2d 443 503
Next, claims the erred in appellant trial court his refusing point charge four, for reads number which аs follows: you find Although may Lapcevich Mr. guilty based alone,
on Mr. testimony though Atwell’s even it is not evidence, I supported by independent must to any say you that it very dangеrous would be unsafe and for the jury Commonwealth, so. Cox v. to do 125 Pa. 96-97 [17 (1889). A. 227]
155 Cox, misconstrues the supra, requiring jury dangerous be informed it is or unsafe to convict on the accomplice of an unsupported adopt we thoughtful Acker’s Judge point. (Slip discussion that Acker, P.J., 5/29/86, 11-15). Op., pp. of
Upon thorough review the trial court’s instruc
jury,
tions tо the
we find the trial court
instruct
adequately
dangers
accomplice
ed the
on the
of
jury
testimony without
using
wording
the
of
precise
appellant’s point
сharge
for
(N.T.
11/18/85,
II,
747-752).
four.
to
A
pp.
11/12/85
vol.
in phrasing
trial court has broad discretion
its instructions
accept
precise
to the
and need not
counsel’s
wording.
Ohle,
Commonwealth v.
503 Pa.
Judgment sentence affirmed. SOLE, J., ROWLEY, J., joined by concur. pursuant espoused 2. We determine that to the direction in Common Tuladziecki, (1987), appellant wealth v. Pa. presented question” by a suitable "statement of “brief reasons” indicat ing question” a “substantial exists before discussion of merits. We, therefore, may properly discretionary address the merits of the aspect of his sentence. *5 SOLE, Judge, concurring: I join Majority Opinion. I write separately express my position relative to thе application of Commonwealth v. Tuladziecki,
In this my view court has jurisdiction to hear appeals from the discretionary aspects of sentencing аs delineated in 42 9781(b). Pa.C.S.A. §
Further, Supreme in Tuladziecki, supra, spe- cifically requirements stated that set forth in that are opinion procedural in Further, nature. the court held: The Appellant properly preserved his challenge to this procedural violation and for the reasons stated herein the Superior Court’s decision to overlook it must be (Emphasis added). vacated.
Therefore, I would conclude in this case that the Appel- lee’s failure to raise the procedural Appel- violation of the lant is a waiver requirements. Tuladziecki addition,
In since the requirements Tuladziecki proce- are dural, this court can consider or whether not there has been substantial compliance with those requirements in choosing to reach the discretionary aspects of sentencing issues. On basis, I agree, my colleagues. with
527A.2d 575 Pennsylvania, Appellant, COMMONWEALTH of John E. BRUNER. Superior Pennsylvania. Court of
Argued April Filed June