No. 92 MARCH TERM, 1979, Appeal from the Order of the Superior Court of Pennsylvania at No. 78 April Term, 1978, affirming the Judgment of Sentence entered by the Court of Common Pleas of Allegheny County, Criminal Division on July 8, 1977 at No. CC7607124AO.
John H. Corbett, Jr., Asst. Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy Dist. Atty., Kemal Alexander Mericli, Kathryn L. Simpson, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion.
Appellant, Robert Louis Joyner, and his co-defendant, Andre Shaw, were charged with criminal attempt and possession of implements for escape. While his co-defendant was acquitted, appellant was found guilty by a jury on both charges. The Superior Court affirmed the convictions per curiam. We granted appellant's petition for allowance of appeal and we affirm.
Initially, appellant contends the evidence was insufficient to sustain the convictions. We must review the evidence in a light most favorable to the verdict winner, in
this case, the Commonwealth. To find the evidence is insufficient it must be determined that accepting as true all of the evidence and all reasonable inferences therefrom, upon which, if believed, the jury could properly have based its verdict, it would be nonetheless insufficient in law to prove beyond a reasonable doubt that appellant is guilty of the crimes of which he has been convicted. Evidence may still be found sufficient even though it be wholly circumstantial. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).
A review of the evidence at trial, read in the light most favorable to the Commonwealth, reveals the following. The Captain of the Guard at the State Correctional Institution at Pittsburgh observed co-defendant Shaw at the door of his cell and shortly thereafter on his bed. On further inspection, the guard observed a hole in the ceiling and an alteration of the light fixture. Then three persons with ski masks emerged from under the bed and ran out of the cell. A resident wearing a brown ski mask was seen running into cell M-4 and five minutes later guards brought appellant out of that cell. One of the guards testified that when he entered the cell he saw appellant sitting on a mattress breathing heavily and found the brown mask on a shelf in a cabinet in the cell. This guard further testified that appellant was the only inmate in the cell at this time.
Shaw's cell showed signs of an attempt to knock a hole through the concrete ceiling with the aid of an electric drill. Witnesses told of seeing about 35 drill holes in the ceiling, a "hole" measuring about 8 inches X 18 inches, bits of concrete on the floor, the cell furniture in disarray, mirrors fastened to sticks, a pair of pliers, and the ceiling light fixture loosened and moved from its original location. The 1/4" electric drill and bit were found on top of the light fixture. The three men who rushed out of Shaw's cell wore ski masks apparently made from sweater sleeves and the Guard Captain said ...