Appeal from judgment of sentence of Court of Common Pleas of Mercer County, June T., 1968, No. 12, in case of Commonwealth of Pennsylvania v. Harvey Williams Lyons.
Herman M. Rodgers, with him Rodgers, Marks, Irwin & Perfilio, for appellant.
Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.
[ 219 Pa. Super. Page 19]
Appellant was convicted by a jury of larceny of a garden tractor. Motions in arrest of judgment and for a new trial were refused by the court below and sentence imposed.
The evidence, treated in the light most favorable to the Commonwealth, was that a truck bearing Ohio license
[ 219 Pa. Super. Page 20]
No. 5 C 2220 was seen hauling the victim's tractor away from his property on the night of November 29, 1967. Two unidentified men were in the truck. This same license was seen on one occasion on a truck parked in the driveway of appellant's house in Campbell, Ohio. At appellant's extradition hearing in Ohio, his attorney was seen holding a registration card with the number 5 C 2220 on it, but the name on the registration card was not seen.
A witness, by the name of Feiling, who was arrested for receiving the tractor as stolen goods, testified that appellant and Harry Barnes delivered a tractor to him on or about November 30, 1967. The police later came to Feiling's home and seized two tractors that were in Feiling's possession. One of the tractors recovered by the police was identified as the stolen tractor. The witness was unable to state which tractor appellant had delivered to him.
The lower court held that the cumulative effect of the evidence was such as to warrant submission of the case to the jury. We disagree and are of the opinion that the evidence was insufficient as a matter of law to sustain the conviction.
The Commonwealth's case is based on circumstantial evidence. "The test of the sufficiency of the evidence, irrespective of whether it is direct or circumstantial, is whether accepting as true all of the evidence upon 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 charged." Commonwealth v. Whiting, 409 Pa. 492, 494, 187 A.2d 563, 564 (1963). All the evidence must be read in a light most favorable to the Commonwealth ...