No. 30 April Term 1977, Appeal from Judgment of Sentence Entered on 7/29/76 to No. 71476-279 by the Court of Common Pleas of Blair County, Pa., Juvenile Div. (Criminal)
John Woodcock, Jr., Hollidaysburg, for appellant.
Fred B. Gieg, Jr., Assistant District Attorney, Altoona, submitted a brief for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Van der Voort, J., did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 345]
Appellant, a juvenile, pleaded guilty to one count of burglary,*fn1 and was convicted and sentenced on one count of theft by unlawful taking,*fn2 and two counts of retail theft.*fn3 On this appeal he contends that the evidence was insufficient to support the convictions.
In deciding the sufficiency of evidence, we must first accept as true all the evidence upon which the trier of fact could properly have based the verdict, and then ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974); Commonwealth v. Petrisko, 442 Pa. 575, 579-89, 275 A.2d 46, 49 (1971). However, guilt must be proved and not conjectured. Commonwealth v. Wilson, 225 Pa. Super. 513, 312 A.2d 430 (1973).
Appellant was convicted of the theft on July 9, 1976, of a car battery and a box of tools. The only evidence in support
[ 255 Pa. Super. Page 346]
of this conviction was the testimony of one Twila Simmers, who testified as follows:
Q. And, ah, then what happened?
A. Dave [appellant] went into an alley, I think, I think Bob went with him and they went, they got a battery . . .
A. The one over there in the other blue shirt.
THE COURT: Alright, go ahead.
A. They went into the alley, got a battery and they also got out of a white van with letters on, they got a red tool box and they brought it over and showed us at the Pet Shop.
Q. Let me stop you there a minute, Twila. Where did they get these items from, do you know?
A. By 1000 Street, out of a white van with letters on.
To be guilty of theft by unlawful taking, a person must unlawfully take, or exercise unlawful control over, movable property of another with intent to deprive him thereof. 18 Pa.C.S. § 3921(a). Commonwealth v. Richardson, 238 Pa. Super. 410, 357 A.2d 671 (1976). Here the evidence did not establish any of these elements: Whose battery and tool box did appellant and Rumbaugh take? Why did they take them? Did they have permission to take them? Were they going to work with them? Did they keep them? One may answer these questions with some assurance, but not with such assurance as is beyond a reasonable doubt.
As mentioned, appellant was convicted on two counts of retail theft. The statute on retail theft provides, in pertinent part:
[ 255 Pa. Super. Page 347]
(a) Offense defined. -- A person is guilty of a retail theft if he:
(1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof;
The first incident involved the theft of some rings from the Tyrone News Agency. Twila Simmers testified that on the morning of July 10, 1976, she was with appellant, Anthony Lopreste, Bob Rumbaugh, and Jim ...