Appeal from order of Superior Court, Oct. T., 1970, Nos. 1562 and 1563, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, Nos. 2058 and 2059, in case of Commonwealth of Pennsylvania v. James Stanley.
John W. Packel, Assistant Defender, with him Jonathan Miller, Assistant Defender and Vincent J. Ziccardi, Defender, for appellant.
Louis A. Perez, Jr., Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Eagen concurred in the result.
Appellant, James Stanley, was convicted of possession of burglary tools and attempted burglary. After post-trial motions were argued and denied, appellant was sentenced to one to three years imprisonment for possession of burglary tools and one to two years for attempted burglary, the sentences to run concurrently. An appeal was taken to the Superior Court, which affirmed the judgment of sentence in an opinionless per curiam order. Judge Hoffman filed a dissenting opinion, in which Judge Montgomery and Judge Spaulding joined. Commonwealth v. Stanley, 219 Pa. Superior Ct. 8, 279 A.2d 224 (1971). We granted allocatur and now we reverse.
This appeal challenges the sufficiency of the evidence to sustain convictions for possession of burglary tools and for attempted burglary. It is axiomatic that "[o]n appeal from a criminal conviction, the test for
sufficiency of the evidence is: 'whether, accepting as true all the evidence and all reasonable inferences therefrom, 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 or crimes of which he has been convicted.' Commonwealth v. Oates, 448 Pa. 486, 489, 295 A.2d 337 (1972)." Commonwealth v. Paquette, 451 Pa. 250, 253, 301 A.2d 837, 838-39 (1973). See also Commonwealth v. Williams, 450 Pa. 327, 301 A.2d 867 (1973); Commonwealth v. Wright, 449 Pa. 358, 296 A.2d 746 (1972); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). We also recognize that while the Commonwealth must establish every essential element of a crime beyond a reasonable doubt, this burden may be sustained by means of wholly circumstantial evidence. Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972); Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972); Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972). However, conviction must be based on more than mere suspicion or conjecture. Commonwealth v. Bailey, supra; Commonwealth v. McFadden, supra; Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966).
The instant record, read in the light most favorable to the Commonwealth, reveals that at approximately ten o'clock on the night of May 7, 1970, a police officer on foot patrol received information to proceed to 1253 Point Breeze Avenue, Philadelphia. At trial, the testimony of the police officer was as follows:
"On my way down, I was approximately 12, 13 stores away from this location, I observed the defendant coming out of the doorway of a store and walking north on Point Breeze Avenue, where I was walking south. There was a construction site, a pile of sand.
I saw the defendant walk over and place something . . . bend over the sand pile. He continued walking north on Point Breeze Avenue where I apprehended him at Point Breeze and Latona. It's approximately five stores away from 1253 Point Breeze Avenue. I apprehended him and patted him down. I brought him back to the scene, where I observed in the doorway ...