No. 182 April Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, entered on August 11, 1977, at No. CC7606130A.
Louis R. Dadowski, Jr., Appellate Counsel, Pittsburgh, for appellant.
Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, Wieand and Lipez, JJ.
[ 264 Pa. Super. Page 305]
On December 16, 1976, after a non-jury trial, appellant was found guilty of criminal attempt to commit burglary.*fn1 Post-trial motions were denied and appellant was sentenced to one to three years in prison. In this appeal, appellant contends that the evidence was insufficient to sustain his conviction. We agree and, therefore, reverse.*fn2
The facts are not in dispute: On August 16, 1976, at about 6:30 P.M., the outer pane of the bedroom window of Michael Terral's ground floor apartment was smashed. The sound of the breaking glass drew two second-floor tenants of Terral's apartment building to their windows. They observed appellant standing on a log embankment ten feet from Terral's apartment looking down towards the broken window.*fn3 After appellant walked away from the scene, approximately one and one-half minutes later, one of the two tenants called the police. When the police arrived, both tenants supplied a description of appellant. Appellant was arrested three blocks from Terral's apartment less than an hour after the second-floor tenants had first seen him. No tools or anything of an incriminating nature were found on his person. After arresting appellant, the police investigated Terral's window. Its protective screen had been pried off and placed against the retaining wall and the window pane was broken. No further evidence was gathered from the scene.
The test for assessing the sufficiency of the evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454
[ 264 Pa. Super. Page 306]
(1976). The Commonwealth may sustain its verdict by means of wholly circumstantial evidence. Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975).
To constitute a crime, there must be "an act committed or omitted in violation of a public law either forbidding or commanding it." Commonwealth v. Smith, 266 Pa. 511, 109 A. 786 (1920). "Some act of commission or omission lies at the foundation of every crime." 22 C.J.S. Criminal Law § 37. The offense charged here is defined as follows: "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S. § 901. We are here concerned with an act of commission. Conduct which is wholly passive obviously is not an "act of commission." Hence, the mere presence of a person at the scene of crime is not sufficient circumstance upon which guilt may be predicated. Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973). There must be other evidence of participation in the alleged crime. Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976).
Viewing the record in the light most favorable to the Commonwealth, the fundamental weakness in the Commonwealth's case is the lack of any nexus between the appellant's presence at the scene and any of the acts resulting in the removal of the screen or the breaking of the window. Though the appellant was seen standing some ten feet away from the premises looking towards it, there was no evidence of any other conduct by him except walking away from the scene shortly thereafter.*fn4
Guilt cannot be based on suspicion or speculation. Commonwealth v. Stanley, supra. The inference of guilt must be based on facts and conditions proved and must be of such character as to establish guilt beyond a reasonable doubt. ...