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COMMONWEALTH v. FONTANA (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
FONTANA, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Berks County, No. 34 of 1973, in case of Commonwealth of Pennsylvania v. William Fontana.

COUNSEL

William F. Ochs, Jr., Assistant Public Defender, for appellant.

Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 230 Pa. Super. Page 464]

Appellant contends that the evidence presented at trial was insufficient to sustain his conviction for burglary.

On August 15, 1972, appellant was arrested and charged with burglary of Franklin Stackhouse's home located in a rural area in Berks County. The Stackhouse residence is situated on a wooded tract and is set back one hundred feet from the road. There is a cinder block wall approximately twelve feet from the rear of the house. The home is equipped with a burglar alarm system which is set to sound for approximately one minute upon an intrusion into the center hallway of

[ 230 Pa. Super. Page 465]

    the home. Mr. Stackhouse was away on vacation from July 26, 1972, until August 19, 1972. Before he left, he locked all the doors and windows and notified the local and state police that the house would be vacant. Edgar Muth, the Chief of Police of Pike Township, had checked the dwelling on the morning of August 15 and found it to be in order.

At approximately 5:00 p.m. on August 15, 1972, Charles Eckert, III, Stackhouse's next-door neighbor, was driving home from work. Eckert was a part-time patrolman as well as a bank employee. He testified that he heard the burglar alarm and noticed a man running along the contour of the rear wall. He further stated that the man reversed direction, glanced back, and ran off into the woods. Eckert testified that he observed the individual's height and clothing and was able to see his face. At this time, the witness's father, Charles Eckert, Jr., was coming out of his home. The two went to the rear of the Stackhouse residence and observed that a window on the kitchen door had been broken. They then returned to their residence and waited for the police.*fn1 When Chief Muth arrived, he and Charles Eckert, Jr., inspected the Stackhouse dwelling. Chief Muth testified that dresser drawers were open and several items were lying on the sofa. Charles Eckert, III, proceeded to search for the alleged burglar. Approximately fifteen minutes later, appellant was discovered in a wooded area of the Eckert tract.

It is axiomatic that the Commonwealth must prove every essential element of a crime beyond a reasonable doubt, Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968), and that conviction must be based on more than mere suspicion or conjecture. Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972). It is

[ 230 Pa. Super. Page 466]

    equally true, however, that the Commonwealth may sustain its burden by means of wholly circumstantial evidence. Commonwealth v. ...


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