Defender Assn. of Philadelphia, John W. Packel, Chief, Appeals Div., Elaine De Masse, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy and Nix, JJ., dissent. Jones, C. J., did not participate in the consideration or decision of this case.
Appellant was convicted of burglary and larceny on August 27, 1973. The case was tried before a judge sitting without a jury in the Court of Common Pleas of Philadelphia. Appellant was sentenced to five to ten years imprisonment, and the judgment of sentence was affirmed by the Superior Court in an opinionless per curiam order.*fn1 We granted allocatur*fn2 and reverse.
Appellant's sole contention is that the evidence was insufficient to sustain the conviction. As stated in Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975):
"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could
reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt."
See Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975).
The record, read in the light most favorable to the Commonwealth, shows the following. At 3 a. m., May 11, 1973, Officer Thomas Evans observed Gerald Blatch emerge from a door at the rear of a building. Blatch was carrying a box of frozen meat. The doorway from which Blatch exited opened into a vestibule that led to the rear door of a grocery store and also to a stairway ascending to an apartment above the store. Evans ordered Blatch to stand against the wall. While Evans was engaged with Blatch, appellant emerged from the door of the building. At trial, Evans was unable to recall whether appellant was carrying anything. Appellant was also ordered to stand against the wall. As Evans advanced toward the two men, Blatch threw the box of frozen meat at Evans and fled. As Evans attempted to stop Blatch, appellant fled in the opposite direction. Appellant was apprehended approximately one-half later; a search of his person produced no inculpatory evidence.
There was no testimony placing appellant in the store. No stolen goods were found in his possession. The Commonwealth introduced no evidence to negate the possibility that appellant had come from the apartment above rather than from the store. There was neither testimony linking appellant with Blatch ...