Appeal from judgment of sentence of Court of Common Pleas of Delaware County, May T., 1973, Nos. 245 and 246, in case of Commonwealth of Pennsylvania v. Herbert James.
R. Barclay Surrick, Assistant Public Defender, for appellant.
John G. Siegle and Anna I. Vadino, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Dissenting Opinion by Hoffman, J.
[ 230 Pa. Super. Page 188]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Delaware County, by the defendant, Herbert James, after conviction by a jury of burglary, larceny and conspiracy. He had been charged with receiving stolen goods but that charge was withdrawn prior to commencement of the trial. Post-trial motions were denied by the court en banc with one judge dissenting and he was sentenced to pay the costs of prosecution and to undergo imprisonment for not less than two (2) years nor more than four (4) years.
The question raised by this appeal is the sufficiency of the evidence. There is no complaint concerning the conduct of the trial or the charge of the court.
The facts are as follows: On the night of September 22, 1972, at about 11:19 P.M. police officers responded to a police radio call of a burglary in progress at the Skies and Ties Men's Shop, Chester, Pennsylvania. The store has one entrance by way of two glass doors. In front of the doors there is a "Cyclone fence". Upon arriving at the store, the police officers stopped their car in front of a door that had been broken. They observed a co-defendant, not in this appeal, inside the "Cyclone fence" attempting to climb over the gate. Outside the gate they found various articles of clothing. Wilson, the co-defendant, fought with the officers but was subdued. As this was going on, other officers arrived and went to the rear of the store. There was no rear entrance to the store itself, but there is a stairway which leads to an apartment on the second floor. The officers checked the area and found a fifty (50) gallon drum directly underneath the stairway. On top of the drum were found thirteen pairs of trousers. About eight to ten feet away from the drum, the defendant James was found in a crouched position under the
[ 230 Pa. Super. Page 189]
stairway. He gave no response to a question as to what he was doing under the stairway.
The premises had been checked by the police at about 11:10 P.M. and the store doors were intact and secured. The owner of the store identified the trousers as being his goods. The clothing found in front with Wilson was also identified as his goods.
The defendant did not take the stand nor was any testimony produced in his defense. While it is true that the Commonwealth must prove every essential element of a crime beyond a reasonable doubt, it is well established that the Commonwealth may sustain this burden by means of wholly circumstantial evidence. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); Commonwealth v. Slavik, 437 Pa. 354, 261 A.2d 583 (1970).
It is also well settled that the test in a criminal case of the sufficiency of the evidence is: "Whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted." Commonwealth v. ...