Appeal from judgment of sentence of Court of Common Pleas of York County, May T., 1972, No. 151, in case of Commonwealth of Pennsylvania v. Barry L. Herman.
John H. Chronister, Public Defender, for appellant.
Kenneth J. Sparler, Assistant District Attorney, Morrison B. Williams, First Assistant District Attorney, and Donald L. Reihart, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.
[ 227 Pa. Super. Page 327]
The only issue in this appeal is whether the Commonwealth presented sufficient evidence to convict appellant of the crimes of attempt with intent to commit a burglary and the possession of burglary tools.
On May 31, 1972, during the early morning hours, Kenneth Gosnell, who resides at 668 West Market Street, upon hearing a "prying" sound from outside, observed from a fourth floor window two men behaving suspiciously at a door leading into Rehmeyer's store on South Belvidere Avenue in the City of York. Gosnell summoned his wife, who confirmed her husband's observations, and she proceeded to go next door and call the police. Upon her return, and after her husband left the window, she continued to observe the men in
[ 227 Pa. Super. Page 328]
their activity. After a car drove by, the men terminated the activity and walked a short distance south on Belvidere Avenue, stopped on the corner of Mason Avenue for a brief time, and one of the men was seen by Mrs. Gosnell to bend over and apparently drop something in the gutter along the curb. Another witness, a Mrs. Schroll, observed the men turning the corner and proceeding west on Mason Avenue, which runs parallel to Market Street, and a half-block south of it. Other than the vague descriptions of one man wearing a light shirt and dark pants, and the other man wearing a dark shirt and light pants, the witnesses could not identify either of the individuals.
During the same interval of time two men were at the corner of Mason and Belvidere when a police car arrived. Officer Hose, driver of the car, approached the scene with his headlights off, and observed two men stooped over at the corner. The appellant and co-defendant were apprehended a short distance west on Mason Avenue from the corner of Belvidere by Officer Hose, and were dressed in the manner described by the witnesses. Upon investigation, Officer Hose and other officers found a tire iron and a large screwdriver, common burglary tools, at the corner of Mason and Belvidere where Officer Hose had observed these two men stooping. The officers also discovered that the door to Rehmeyer's store had been damaged and was held secure only by a safety chain. The door damage and marks thereon were consistent with markings from the tools the police had recovered. Appellant and co-defendant were found guilty following a jury trial.
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.*fn1 Although the Commonwealth
[ 227 Pa. Super. Page 329]
does not have to establish guilt to a mathematical certainty, and may in the proper case rely wholly on circumstantial evidence,*fn2 the conviction must be based on more than mere suspicion or conjecture.*fn3 It is sufficient if the circumstances are consistent with criminal activity even though they might likewise be consistent with innocent behavior. Commonwealth v. LaRue, ...