Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1973, Nos. 812, 813, and 814, in case of Commonwealth of Pennsylvania v. Patrick Manson.
Joshua M. Briskin, and Glickstein & Briskin, for appellant.
Mark Sendrow, David Richman, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Van der Voort, J. Watkins, P. J., joins in this dissenting opinion.
[ 230 Pa. Super. Page 529]
The only issue in this appeal is whether the Commonwealth's evidence was sufficient to convict the appellant of burglary, conspiracy and unlawful taking of property.
On August 14, 1973, Officer Anthony Neely of the Philadelphia Police Department received a radio call instructing him to investigate a burglary at 5479 Euclid Street. When he arrived at the premises, he saw a co-defendant, James White, on the porch of the adjoining property and stopped him. The officer then went to the side of the building and saw appellant standing near a window. The window had been boarded up, but several boards were missing. The officer observed a pile of household goods inside the house and next to the window. In a disabled car parked on the street, the police discovered items later determined to have been taken from the house. The owner of the premises testified that prior to his leaving in the morning nothing had been piled in front of the window, and that the window had been completely boarded.
Appellant made no attempt to flee and was informed by Officer Neely that he was under arrest for suspicion of burglary. At trial, defendant presented no defense. On the basis of the evidence presented by the Commonwealth, the Court found the appellant guilty on all counts.
It is axiomatic that the test for sufficiency of the evidence is whether accepting as true all of the evidence upon which the fact-finder could properly have based its verdict, the evidence was sufficient in law to prove beyond a reasonable doubt that the appellant was guilty of the crimes charged. Commonwealth v. Tabb, 417 Pa. 13,
[ 230 Pa. Super. Page 530207]
A.2d 884 (1965). Although a conviction may be sustained on the basis of circumstantial evidence alone, it may not rest upon conjecture or surmise. Commonwealth v. Cohen, 203 Pa. Superior Ct. 34, 199 A.2d 139 (1964). Recognizing this, it is well established that the mere presence of an individual at the scene of a crime is not sufficient circumstance upon which a finding of 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, 215 Pa. Superior Ct. 477, 258 A.2d 537 (1969).
In Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973), the defendant was apprehended outside of premises which were in the process of being burglarized. When first observed by the police, defendant was standing near the window from which a pane of glass had been removed to gain entry. When defendant saw the police approaching in a patrol car, he attempted to flee. The court held that the inference of guilt from appellant's presence at the point of entry of burglarized premises was impermissible, and that appellant's flight from the scene was not of sufficient probative value to sustain the conviction even when considered with the fact of appellant's presence at the scene. The Court stated that the conclusions sought to be derived from these circumstances "depend too much on conjecture, [and that] a criminal conviction based wholly on inference, suspicion and conjecture may not stand." 454 Pa. at 67.
The Court in Roscioli relied upon a case with facts strikingly similar to the instant case. In Perry v. United States, 276 A.2d 719 (D.C.C.A. 1971), the appellant was seen standing two feet from a broken front window of a store. Inside the store and near the window a box containing meats taken from the store's freezer was found. Two men with ...