No. 2014 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal Division, No. 5556, 1976.
William A. George, Media, for appellant.
D. Michael Emuryan, Assistant District Attorney, Chief, Appeals Division, Media, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort, J., dissents. Hester, J., files a dissenting statement. Jacobs, former President Judge, and Spaeth, J., did not participate in the consideration or decision of this case.
[ 266 Pa. Super. Page 462]
Pursuant to a jury trial concluded on February 18, 1977, appellant was found guilty of burglary,*fn1 theft by unlawful taking,*fn2 and theft by receiving.*fn3 Following arguments on
[ 266 Pa. Super. Page 463]
post-trial motions, the court below arrested judgment on both theft counts, but dismissed a motion for arrest of judgment or a new trial on the burglary count. Appellant was sentenced to a term of imprisonment of not less than eleven (11) nor more than twenty-three (23) months. He now alleges that the court below erred in refusing to direct a verdict in his favor based on the Commonwealth's failure to establish a sufficient chain of evidence with respect to certain fingerprint evidence. We are constrained to agree, and thus reverse the judgment of sentence.*fn4
The facts of the case are not in dispute. On Saturday, August 22, 1976, Ralph Wittig, president of Motor Sport, a Datsun Automobile dealership located at 510 West Chester Pike in Haverford, Delaware County, secured the doors of the showroom for the evening and noted that all was in order. At approximately 10:45 the next morning, Officer Thomas Farrell of the Haverford Police Department proceeded to Motor Sport pursuant to a complaint lodged by a pedestrian. At Motor Sport, he discovered a large portion of a showroom window smashed, with shattered glass strewn about the inside of the showroom and the walkway. The five-by-ten foot window was located on the side of the building fronting a parking lot, and adjacent to a walkway leading to the dealership garage. Inside the showroom, the desk nearest the broken window had been gouged and a concrete block lay nearby.
Officer James Dunlap next arrived on the scene and noted a two-by-three foot piece of plate glass leaning against the wall a short distance from the broken window frame. Officer
[ 266 Pa. Super. Page 464]
Dunlap dusted the piece for fingerprints, and recovered six latent prints; only three of which were later determined to be identifiable. The total amount of property taken from the dealership was confined to a radio display valued at $450 and a gumball machine.
At trial, the Commonwealth's sole evidence connecting appellant with the crime was the set of fingerprints lifted from the piece of glass. The testimony concerning these prints may be summarized as follows. On the first day of trial, Detective Michael C. Olanin was called as a fingerprint expert. He testified that on August 24, 1976, Officer Dunlap asked him to compare the fingerprints on three cards; two containing latent prints and the third being a rolled impression card. The latter is a white fingerprint card containing a single individual's ten fingerprints, and is usually signed by the subject. Detective Olanin stated that the rolled impression card given him by Officer Dunlap was that of appellant. After comparing the impression card with the latent prints on the remaining two cards -- which were admitted at trial as exhibits C-1 ...