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decided: July 12, 1978.


No. 997 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Indictment No. 1543, November Session, 1976.


John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone and Price, JJ., dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 256 Pa. Super. Page 70]

Appellant contends that the Commonwealth failed to produce sufficient evidence to establish his guilt beyond a reasonable doubt.*fn1 We agree and vacate the judgment of sentence and, therefore, order appellant discharged.

On May 27, 1976, a Philadelphia police officer arrested appellant and charged him with possession of an instrument of crime.*fn2 On January 26, 1977, a non-jury trial commenced in the Philadelphia County Court of Common Pleas. The Commonwealth produced police officer Clark as its sole witness. He testified that at about 5:20 a. m., on May 27, 1976, he was on routine car patrol in center city Philadelphia. At 1701 Delancey Street, he observed appellant "up against the door". The door at 1701 is up a few steps from street level and is recessed in a foyer. The officer could not say with certainty where appellant's hands were while he was at the door. The officer stopped to investigate; he called to appellant and asked what he was doing. Appellant replied that he was urinating. Officer Clark frisked appellant

[ 256 Pa. Super. Page 71]

    and, in appellant's jacket pocket, he discovered a hard object. He removed a flashlight, a tube, and lockpicks from the pocket. The officer placed appellant under arrest.

Counsel stipulated that if a representative of the law firm located at 1701 Delancey Street were to testify, he would state that appellant did not have permission to enter the premises at that time. Further, they stipulated that the flashlight was operable at the time the officer seized it.

After the denial of appellant's demurrer, he took the stand. Appellant stated that in the early morning hours of May 27, 1976, he arose, dressed in his white work uniform, and left his home at 1220 Spruce Street to take a walk.*fn3 At 1701 Delancey Street, he stopped to urinate but, upon seeing the police officer, decided against it. Appellant admitted having the flashlight, tube, and lockpicks in his pocket on May 27, 1976. However, he explained his possession by informing the court that he is a certified self-employed locksmith and that the items are locksmith tools. Appellant produced a certification card, the court indicated that it believed appellant to be a locksmith. Counsel stipulated that if a Mr. Borman and a Mr. Mayberry testified, they would state that appellant performed locksmith work for them. The court found appellant guilty as charged. Appellant made oral, on-the-record post-verdict motions which the court denied. The court sentenced appellant to two years' probation to run consecutively to an unrelated probation term appellant was then serving. This appeal followed.

Appellant challenges the sufficiency of the evidence to convict him of possessing an instrument of crime.*fn4 Specifically, he contends that the Commonwealth failed to

[ 256 Pa. Super. Page 72]

    present any proof that he had the intent to employ the tools criminally. In reviewing a claim of insufficient evidence, we must view the evidence in the light most favorable to the Commonwealth and draw all reasonable inferences in favor of the Commonwealth. Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d 1292 (1978). A verdict of guilt must not be based upon surmise or conjecture. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). The offense of possessing an instrument of crime is defined by the Code as follows:

"(a) A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally. . . .

[ 256 Pa. Super. Page 73]

"(c) As used in this section the following words and phrases shall have the meanings given to them in this subsection: 'Instrument of crime.'

(1) Anything specially made or specially adapted for criminal use; or

(2) anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have."

In interpreting this section, our Supreme Court has opined:

"It is clear from this statutory language that two requirements must be met before one can be convicted under this section: (1) possession of criminal instruments by the defendant; and (2) an intent to use the tools for some criminal purpose. Commonwealth v. Allen, 466 Pa. 474, 353 A.2d 452 (1976). The Crimes Code provision is simply a recodification in general terms of the former crime of possessing burglary tools, defined in some detail by the Penal Code of 1939. See Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973). Thus as appellant correctly asserts, intent to use the instruments in a criminal manner is an independent element of the offense which the Commonwealth must prove. As in any criminal offense, however, intent need not be directly proved, but may be inferred from the circumstances surrounding the incident out of which the charges arise." (footnote omitted). Commonwealth v. Hardick, 475 Pa. 475, 478, 380 A.2d 1235, 1237 (1977). Moreover, proof of intent to employ the item criminally requires more than mere possession. Commonwealth v. Moore, 476 Pa. 19, 381 A.2d 845 (1978); Commonwealth v. Hardick, supra. In order to determine whether appellant intended to use the tools in criminal activity, we must look to the facts and circumstances surrounding the possession and seizure. Commonwealth v. Hardick, supra; Commonwealth v. McHarris, 246 Pa. Super. 488, 371 A.2d 941 (1977); see also Commonwealth v. Gatto, 236 Pa. Super. 92, 344 A.2d 566 (1975).

In the instant case, the Commonwealth produced testimony establishing appellant's presence in a doorway at

[ 256 Pa. Super. Page 745]

a. m. with lockpicks and a flashlight in his pocket. There is no evidence that appellant's hands were on the door or that he made an attempt to extract the tools from his pocket and apply them to the door. In fact, there is no act or statement by appellant that would lead one to infer that he intended to use the tools at that time. Additionally, appellant did not try to flee when the officer approached nor did he give an evasive or incorrect answer to the officer. Moreover, appellant is a certified locksmith and it is not unreasonable to find the tools of his trade in his pocket, especially when he is wearing his work attire. In conclusion, we find no evidence to support a finding of criminal intent.*fn5 Consequently, we vacate the judgment of sentence and order appellant discharged.

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