Appeal from judgment of sentence of Court of Common Pleas of Carbon County, Jan. T., 1973, No. 16, in case of Commonwealth of Pennsylvania v. Earl John Cichy.
Thomas S. McCready, Public Defender, for appellant.
James A. Wimmer, Assistant District Attorney, with him John Deutsch, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J. Dissenting Opinion by Jacobs, J. Watkins, P. J., joins in this dissenting opinion.
[ 227 Pa. Super. Page 482]
This is an appeal from a judgment of sentence for burglary and larceny. The only question is whether the Commonwealth presented sufficient evidence to sustain a conviction on the crimes charged.
On the evening of March 28, 1972, a burglary occurred at a gasoline service station in Weatherly, Pennsylvania. On the following morning, the owners arrived and discovered that tools and other articles were missing. Entry had been made through a boarded window. A cigarette machine was partially pried open. After the police arrived, an investigator "lifted" several fingerprints from various objects in the building, including one from the cellophane wrapper on a package of Marlboro cigarettes found on the floor. All of the prints, excepting the one on the cellophane, were smudged and could not be compared. The police expert identified the print on the package as appellant's. Entirely on the basis of this evidence, appellant was convicted of the burglary and larceny of the gas station. After the denial of his motion in arrest of judgment, appellant was sentenced to a term of one and one-half to three years imprisonment.
"The rule is well established that, in passing upon the sufficiency of the evidence to sustain a criminal conviction, the evidence must be read in a light most favorable to the Commonwealth, and it is entitled to the benefit of all reasonable inferences arising therefrom." Commonwealth v. Johnston, 438 Pa. 485, 488, 263 A.2d 376 (1970). "Although the Commonwealth does not have to establish guilt to a mathematical certainty, and may in a proper case rely wholly on circumstantial evidence, the conviction must be based on more
[ 227 Pa. Super. Page 483]
than mere suspicion or conjecture." Commonwealth v. Bailey, 448 Pa. 224, 227, 292 A.2d 345 (1972). Applying this test to the instant case, we do not believe that appellant's conviction can be sustained on the basis of the presence of his fingerprint on the cigarette package.
Although we recognize the accuracy of fingerprint evidence for purposes of identification, the probative value of that evidence depends entirely on the circumstances of each case. Unless those circumstances are such that the fingerprint could only have been impressed at the time and place the crime was committed, such evidence is insufficient to sustain a conviction.
Convictions have been sustained where fresh fingerprints are found at the place of illegal entry to private burglarized premises where a defendant's presence is unexplained. See: McCargo v. State, 3 Md. App. 646, 241 A.2d 161 (1968); United States v. Butler, 390 F. 2d 620 (4th Cir. 1968); People v. Taylor, 32 Ill. 2d 165, 204 N.E. 2d 734 (1965); State v. Pittman, 10 N.C. App. 508, 179 S.E. 2d 198 (1971); State v. Allen, 420 S.W. 2d 330 (Mo. App. 1967); see, generally, Annotation, 28 A.L.R. 2d 1115. However, the mere discovery of prints in a public place with which a number of people may have had innocent contact is insufficient by itself to convict. State v. Minton, 228 N.C. 518, 46 S.E. 2d 296 (1948); Anthony v. State, 85 Ga. App. 119, 68 S.E. 2d 150 (1951); McClain v. State, 198 Miss. 831, 24 So. 2d 15 (1945); Graves v. State, 119 Tex. Crim. App. 68, 43 S.W. 2d 953 (1931).
Similarly, where the prints are found in a place accessible only by the application of force or on objects with which the defendant could not have had legitimate contact, that evidence has been held sufficient. United States ex rel. Chiarello v. Mancusi, 288 F. Supp. 178 (D.C.N.Y. 1968) (defendant's ...