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.
[ 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 ...