Appeal from order of the Superior Court Oct. T., 1971, No. 784, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1971, No. 660, in case of Commonwealth of Pennsylvania v. Theodore Bailey.
John W. Packel, Assistant Defender, with him Francis S. Wright, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen.
This is an appeal from a per curiam order of the Superior Court, affirming the judgment of sentence imposed upon appellant, Theodore Bailey, following his conviction by a judge sitting without a jury, of larceny. The sole question presented is whether the Commonwealth produced sufficient evidence to prove guilt beyond a reasonable doubt.
The record read in the light most favorable to the Commonwealth discloses the following pertinent facts.
In the afternoon of December 2, 1971, Edward Pettolina, an employee of Anthony Pettolina & Sons, saw an unidentified man take a box of hosiery from the loading dock of the warehouse of his employer, throw it over a wall surrounding the warehouse premises and then climb over the wall himself. Pettolina got into his car and drove around the wall in pursuit. He could not locate the man on the adjoining street, but approximately three minutes thereafter, he identified a man seated in the back seat of a 1964 Chevrolet, stopped about a block and a half from the warehouse, as the thief. There were five other males in the automobile, and at trial Pettolina said Bailey was the driver. Pettolina did not see the thief enter the car, nor did he see the box of hosiery in the car. Pettolina demanded the men get out of the car and open the trunk, but Bailey drove away without responding.
Approximately one hour after the foregoing incident, the police stopped a 1964 Chevrolet in response to a radio report of the theft and arrested the occupants. Bailey was at that time a passenger in the car.*fn1 A search of the vehicle revealed none of the stolen property and the thief was never identified.
The conviction of Bailey must rest on a finding that he was either an accessory before the fact, in that he aided or abetted in the larceny, or that he was an accessory after the fact, e.g., he did some act or personally assisted the felon to escape arrest knowing the party had committed the larceny.
On the record before us, we rule the Commonwealth did not produce sufficient evidence to establish either one of these crimes beyond a reasonable doubt, thus the conviction of larceny must fall.
To sustain a conviction, the facts and circumstances which the Commonwealth prove must be such that every essential element of the crime is established beyond a reasonable doubt.*fn2 Although the Commonwealth does not have to establish guilt to a mathematical certainty, and may in the proper case rely wholly on circumstantial ...