Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1972, No. 1734, in case of Commonwealth of Pennsylvania v. Joseph Moore.
Stuart Schuman, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Linda West Conley, Assistant District Attorney, with her James Taylor Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Spaeth, J.
[ 226 Pa. Super. Page 33]
The only issue in this appeal is whether the Commonwealth presented sufficient evidence to convict appellant of the crime of attempted burglary.
On August 15, 1972, at 11:30 p.m., Rudolph Payne who resided at 4856 Brown Street, Philadelphia, looked out his bedroom window and saw a man he recognized as Mills attempting to pry open his neighbor's door. He also observed another man watching the house from across the street. He then saw Mills, who had failed in his attempt to open the door, and the other man go to the rear of the house where both men attempted to "get in" his back gate. Payne then summoned the police.
Upon their arrival, the police observed two men near a fence in the alley behind the Payne house. As the police approached, Mills fled and attempted to hide in
[ 226 Pa. Super. Page 34]
a hedge on 49th Street. The appellant turned west onto 49th Street where he was apprehended approximately 30 feet from the gate. Upon examination, the officers discovered that the lock on Payne's door had been broken.
Appellant testified that at the time of the incident he was walking south on 49th Street to his home. He denied being at the Payne house, either in front or back, and stated that he never attempted to burglarize any house on Brown Street. The trial judge, sitting without a jury, found the defendant guilty.
"[T]he test in determining if the evidence is sufficient to sustain a criminal conviction is, whether accepting as true all of the evidence of the Commonwealth, and all reasonable inferences arising therefrom, upon which the [fact finder] could properly have reached its verdict, was it sufficient in law to prove beyond a reasonable doubt that the appellant was guilty of the crime for which he stands convicted." Commonwealth v. Burton, 450 Pa. 532, 534, 301 A.2d 599 (1973). While guilt may never rest upon conjecture or surmise, a conviction may stand on circumstantial evidence. It is sufficient if the circumstances are consistent with criminal activity even though they might likewise be consistent with innocent behavior. Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955); Commonwealth v. Gibson, 201 Pa. Superior Ct. 573, 193 A.2d 690 (1963).
Although the mere presence of a defendant at or near the scene of the crime, without more, is not a sufficient circumstance upon which guilt may be predicated, Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966); Commonwealth v. Craft, ...