No. 391 October Term, 1978 Appeal from Judgment of Sentence imposed November 18, 1977 by the Court of Common Pleas of Bucks County, Criminal, at No. 1987 of 1975.
Mel D. Kardos, Assistant Public Defender, Doylestown, for appellant.
Kenneth G. Biehn, District Attorney, Doylestown, for Commonwealth, appellee.
Price, Van der Voort and Wieand, JJ.*fn*
[ 276 Pa. Super. Page 469]
William J. Reed was tried jointly with Russell Bowe Johnson, Jr. and Charles William DiAmposia on charges of burglary, theft, receiving stolen property and conspiracy. A jury found him guilty on all counts, but judgment was arrested by the court on the convictions for burglary and theft. A sentence was then imposed for receiving stolen property and for conspiracy to receive stolen property. On appeal, Reed argues that the evidence was insufficient to sustain the findings of guilt on these charges.
It is axiomatic that in determining whether the evidence is sufficient to sustain a criminal conviction, the test is whether, accepting as true all of the evidence of the Commonwealth and all reasonable inferences arising therefrom upon which the jury could properly have reached its verdict, such evidence is sufficient in law to prove beyond a reasonable doubt that appellant was guilty of the crime of which he stands convicted. Commonwealth v. Burton, 450 Pa. 532, 534, 301 A.2d 599, 600 (1973). Although the Commonwealth does not have to establish guilt to a mathematical certainty, and may in a proper case rely wholly on circumstantial evidence, guilt must be proven and may not rest on mere suspicion and surmise. Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973).
On June 29, 1975, when park rangers at Silver Lake reported for work at the maintenance shop used by the Bucks County Parks Department, they found that it had been broken into, that the interior had been vandalized, that green and black paint had been thrown on vehicles garaged
[ 276 Pa. Super. Page 470]
in the shop, and that tool boxes and equipment had been removed. A search of the surrounding area quickly disclosed that the tool boxes and equipment had been placed in tall grass and bushes along the side of the maintenance road which led from the public road to the shop. Park personnel removed the tool boxes and equipment and set up surveillance of the area.
At or about 12:45 o'clock, P.M., Reed, Johnson and DiAmposia walked up the maintenance road to the area where the tools and equipment had been found. Johnson remained on the road, where he looked from side to side and in all directions, as appellant and DiAmposia entered the overgrown area where the equipment had been placed earlier that day. There they pushed the tall grass aside as though looking for something. Ultimately, one of them was overheard to say, "It is not here." Johnson then told them from the road that they were being watched, whereupon Ranger Cairns stepped out and ordered the three men to stay where they were. DiAmposia fled, but appellant and Johnson were taken into custody. Appellant was frequently observed while in custody to be rubbing what appeared to be black paint from one of his hands and from his clothes.
The crime of receiving stolen property is defined in 18 Pa.C.S. § 3925(a), where is it provided that a person is guilty "if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner." Subsection (b) defines "receiving" as "acquiring possession, control or title . . ."
Although we do not have the benefit of the lower court's reasoning for setting aside the convictions for burglary and theft, we must necessarily assume that it found the evidence insufficient to prove that appellant had been one of the persons who burglarized the maintenance shop and took the tools. The issue before this Court, therefore, is whether evidence that ...