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COMMONWEALTH PENNSYLVANIA v. ANTHONY M. HERMAN (10/19/79)

filed: October 19, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY M. HERMAN, APPELLANT



No. 2122 October Term 1978, Appeal from Judgment of Sentence in the Court of Common Pleas of Lehigh County, Criminal Division, Nos. 1347 and 1348 of 1977.

COUNSEL

Carol K. McGinley, Assistant Public Defender, Allentown, for appellant.

Henry S. Perkin, Assistant District Attorney, Allentown, submitted a brief on behalf of Commonwealth, appellee.

Price, Spaeth and Lipez, JJ.

Author: Spaeth

[ 271 Pa. Super. Page 148]

Appellant was convicted by a jury of burglary,*fn1 theft by unlawful taking,*fn2 receiving stolen property,*fn3 criminal trespass,*fn4 attempted burglary,*fn5 and possession of an instrument of crime.*fn6 The convictions arose out of two incidents that occurred in an apartment complex on Florence Avenue in Bethlehem. At the time of the incidents, appellant was a resident of the complex. On this appeal, appellant argues 1) that the evidence was insufficient to sustain the convictions; 2) that the lower court erred in denying his motion to sever the charges; and 3) that the lower court erred in ruling that the Commonwealth could impeach him on the basis of his prior convictions.

In testing the sufficiency of the Commonwealth's evidence, we proceed in several steps. First, we accept as

[ 271 Pa. Super. Page 149]

    true all the evidence upon which the finder of fact could properly have reached its verdict. Next we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. This inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient. See Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1978); Commonwealth v. Morgan, 265 Pa. Super. 225, 401 A.2d 1182 (1979). Read in the light of these principles, the Commonwealth's evidence may be summarized as follows.

Phillip Trump, who was the Commonwealth's first witness, was a student at Moravian College who lived in an apartment complex at 2103 Florence Avenue. After being out of his apartment during the entire evening of May 28, 1977, he returned the following morning at 2:00 a. m. Because it was a holiday weekend, most of the residents in the complex were absent. As he was proceeding to his apartment, however, he noticed appellant standing in the apartment complex's parking lot approximately forty feet from Sally Graham's apartment. Trump had known appellant for four-and-a-half months as his next door neighbor in the complex, and since the parking lot was well-lit, he was able to see appellant clearly. Trump went to his apartment, but ten minutes later heard noises outside the rear of the apartment. He went to the door, looked out, and saw appellant with a tool prying open the window screen of Carol Horvath's apartment. Again, as the area was well-lit, Trump was able to see appellant clearly. After watching him for fifteen to twenty seconds, Trump went to Graham's apartment to get another witness to appellant's actions. There he met Mark Hanlon, who agreed to return with

[ 271 Pa. Super. Page 150]

Trump to his apartment. On their way, however, they met appellant, who had since left Carol Horvath's window. Appellant was carrying a six-inch regular head screwdriver. Hanlon spoke with appellant briefly and continued with Trump to Trump's apartment. The police were then called. On an unspecified date after the night of the incidents, appellant approached Trump and told him that if he testified against him appellant would get him, and "it would be very expensive for him." N.T. 29-30.

Mark Hanlon, who was the Commonwealth's second witness, and Sally Graham went out on a date at 6:00 p. m. on May 28. When they returned to Graham's apartment at 1:45 a. m. the next morning, its door was open about 1/4 inch. Marks on the door jamb showed that it had been pried open with something like a screwdriver. Inside the apartment, Hanlon saw that the drapes had been torn. Trump then appeared. As Hanlon and Trump were proceeding towards Trump's apartment, they met appellant, who was carrying a screwdriver. Hanlon asked ...


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