No. 1178 OCTOBER TERM, 1978, Appeal from the Orders of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, at Nos. 42-45 December Sessions, 1977.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellant.
Marilyn J. Gelb, Philadelphia, for appellee.
Van der Voort, Hester and Wieand, JJ.
[ 271 Pa. Super. Page 493]
This case involves an appeal by the Commonwealth from orders of the trial judge sustaining appellee's demurrer at the end of a jury trial to charges of robbery (Bill No. 45) and criminal conspiracy (No. 44).
The appellee, William N. Carter, was one of three men who entered a gas station at Broad and Diamond Streets in Philadelphia on October 30, 1977 at about 3:00 A.M., and who ran from the premises shortly after one of the three brandished a revolver and took from the attendant some $230.
The question to be resolved is whether there was sufficient evidence to carry the Commonwealth's burden of proving that appellee was a participant in the conspiracy and robbery.
Judge Goldman concluded that there was insufficient proof and sustained appellee's demurrer relying on Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975).
We think Fields must be distinguished on its facts from the present case and we therefore reverse and remand.
As the Commonwealth concedes in its brief, and as Fields hold, mere presence at the scene of a crime, coupled with flight from the scene, without something more, is insufficient to show participation in the crime. On the other hand, the Commonwealth "does not have to establish guilt to a mathematical certainty and may in the proper case rely wholly on circumstantial evidence . . ." provided that the conviction be "based on more than mere suspicion or conjecture": Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973), quoted by Judge Cercone in Waldron Appeal, 237 Pa. Super. 298, 307, 353 A.2d 43, 48 (1975).
In this present case we have evidence through the testimony of the gas station attendant that three men arrived together on foot at the gas station talking to each other. The time was about 3:00 A.M. Further testimony established that one of the trio asked for change ...