No. 873 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment No. 732, August Session, 1978
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Brosky and Eagen, JJ.*fn* Wickersham, J., files a dissenting opinion.
[ 278 Pa. Super. Page 615]
After a bench trial in Philadelphia, Albert G. Viall was found guilty of burglary and attempted theft by unlawful taking. After post-verdict motions were denied, a prison sentence of 5 to 15 years was imposed. Later a petition to reconsider the sentence was granted, and the term of imprisonment was reduced to 3 1/2 to 8 years. This appeal from the judgment of sentence followed.
First, Viall contends the evidence was insufficient to establish his guilt "of burglary" since it established only his presence near the scene and his flight.
The test for sufficiency is whether, accepting as true all the evidence and all reasonable inferences therefrom upon which the verdict could have been based, it is 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. Commonwealth v. Ross, 248 Pa. Super. 312, 313, 375 A.2d 113 (1977).
[ 278 Pa. Super. Page 616]
The Commonwealth's evidence at trial established the following: A police officer was dispatched by radio to Emil's Delicatessen at approximately 11:40 p. m. on July 26, 1978 to investigate a "burglary in progress."*fn1 After arriving at the scene, he discovered the delicatessen had been ransacked, drawers and cabinets were opened and the two rooms were in general disarray. While within the building, the officer heard footsteps on the roof. He ran outside and positioned himself at the side of the building where he observed a person on the roof of the building. The person moved to the edge of the roof and started to lower himself over the edge. The officer, then not thirty feet away from the person, shone his flashlight directly into his face. He recognized the person as Albert Viall with whom he was personally acquainted. The officer called for him to keep coming down, but Viall climbed back up onto the roof and fled in the opposite direction. The officer ran around the building in an attempt to relocate Viall. He then heard metal banging in an alleyway and saw Viall tugging at a steel gate in an attempt to gain exit. Viall was placed under arrest. The owner left at 5 p. m. at which time everything was in order, and the manager of the delicatessen and another employee left and locked up the premises at 8:30 p. m. After the police arrived, a hole, sufficiently large for a man to crawl through, was discovered in the ceiling.
This evidence is strikingly similar to that which was held sufficient in Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972). In that case, the evidence established that a report of a burglary in progress was received; that police officers responded immediately; that, upon arriving, they heard noises coming from within the building and found the front door was loosened and a window jimmied; that the police saw two men flee from the rear of the building and
[ 278 Pa. Super. Page 617]
captured one when he emerged from an alley onto the street and the other shortly thereafter when he was observed on the roof of a nearby shed. Our Supreme Court, while upholding the ...