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COMMONWEALTH PENNSYLVANIA v. GILBERT TINGLE (01/11/80)

filed: January 11, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GILBERT TINGLE



No. 2409 October Term, 1978, Appeal from the August 24, 1978 Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of May Sessions, 1978, Nos. 1751-1754, Granting Appellee's Motion in Arrest of Judgment

COUNSEL

William C. Turnoff, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Douglas H. Riblet, Assistant Public Defender, Philadelphia, for appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Sugerman

[ 275 Pa. Super. Page 491]

The Commonwealth has appealed an Order of the Court of Common Pleas of Philadelphia County granting the Defendant-Appellee's motion in arrest of judgment.

Appellee was convicted at a non-jury trial of burglary, possessing instruments of crime and criminal conspiracy.*fn1 Posttrial, Appellee filed motions for a new trial and in arrest of judgment, and without ruling on the motion for a new trial, the trial judge, sitting as the court en banc, granted the motion in arrest of judgment.

[ 275 Pa. Super. Page 492]

In his opinion filed pursuant to Pa.R.A.P. 1925(a), the trial judge set forth the basis underlying his Order arresting judgment:

". . . Every reasonable inference has been given to the Commonwealth's evidence, but this court still must require that the prosecution prove every element of the crime, either factually or circumstantially, before sustaining a guilty verdict. The Commonwealth has failed to prove all the elements of the crimes charged; it has failed to meet its burden of proof beyond a reasonable doubt; and the record is insufficient to sustain a guilty verdict."

Under the authority contained in the Act of June 15, 1951, P.L. 585 § 1, 19 P.S. § 871, a trial court may grant a defendant's motion in arrest of judgment when the evidence is insufficient to sustain the charge. The appropriate standard to be used in deciding the motion, as stated in Commonwealth v. Meadows, 471 Pa. 201, 205, 369 A.2d 1266, 1268 (1977), quoting from Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965) is as follows:

"'In passing upon such a motion [in arrest of judgment], the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion is to admit all the facts which the Commonwealth's evidence tends to prove.'" (Emphasis in original.)

And see Commonwealth v. Kirkman, 264 Pa. Super. 170, 399 A.2d 720 (1979).

As the lower court obviously granted Appellee's motion on the ground of insufficient evidence, we must determine whether the evidence at trial was sufficient to support the guilty verdicts.

At trial, the arresting officer testified that as the result of a "burglary in progress" message received on his police radio, he proceeded to a tavern at 13th and Brown Streets in the City of Philadelphia. Upon arrival, at 3:40 P.M., the officer observed a broken window in the tavern and the

[ 275 Pa. Super. Page 493]

    front door ajar. Broken glass was on the sidewalk in front of the tavern, and the lock on the door was intact and it appeared to the officer that the door had been forced open. The officer then entered the tavern and observed the Defendant and another person "hunched" over a jukebox, apparently attempting to forcibly open it.

The officer also testified that upon closer observation, he noticed the Defendant actually bending over the coin receptacle of the jukebox, within a ...


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