Appeal from order of Superior Court, Oct. T., 1970, Nos. 1307 and 1308, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, Nos. 644 and 646, in case of Commonwealth of Pennsylvania v. Richard Cimaszewski.
Stanton A. Berkowitz, for appellant.
Milton M. Stein, Assistant District Attorney, with him James Wilson and James T. Owens, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case.
Appellant Richard Cimaszewski was tried before a judge, sitting without a jury, and convicted of attempted
burglary and possession of burglary tools. Following a denial of post-trial motions, appellant was sentenced to a term of 3 to 10 years imprisonment for attempted burglary, and received a suspended sentence for possession of burglary tools. The Superior Court affirmed per curiam, without opinion. We granted allocatur and now reverse the conviction of possession of burglary tools and affirm the conviction of attempted burglary.*fn1
It is axiomatic that where the prosecution has won the verdict at trial, appellate courts are bound to review the evidence in the light most favorable to the Commonwealth together with all reasonable inferences flowing therefrom. Commonwealth v. Miller, 445 Pa. 282, 284 A.2d 739 (1971); Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (1970). Viewing the evidence in this light, the following appears.
At approximately eleven o'clock on the night of January 20, 1970, police officers arrived at a building known as 2313 E. Cumberland Street, Philadelphia, in response to a "burglary in progress" report pertaining to a real estate office located at that address. They found the door loose, but not openable and heard noises coming from within the building. Looking down the outside of the structure, Officer Anthony Briscella saw two men run from the rear of the building down a nearby alley. The officer jumped into his police vehicle and drove around the block to the place where the alley exits into a street. At that point Officer Briscella saw a man run from the alley. The man was later apprehended and identified as one Stanley Cimaszewski, appellant's brother. Another officer, Dewald, proceeded on foot to the rear of the property through a walkway adjoining the real estate office, and while so doing
"heard noises coming from the fences." When he reached the rear of the structure, the officer ". . . looked down through the [adjoining back] yards and observed the defendant, Richard, standing on top of a shed roof" which was located three lots away. The officer called to the person he observed to halt, climbed over the fences separating the several yards, and apprehended appellant, who had by then climbed down to the yard. The Commonwealth's evidence also showed that a window of the real estate office had been "jimmied", and its ...