No. 218 January Term, 1978, Appeal from the Judgment of Sentence by the Court of Common Pleas of Northampton County, at No. 131 October Term, 1975, on February 7, 1977, and Order affirming the Judgment of Sentence by the Superior Court of Pennsylvania at No. 1003 October Term, 1977.
Joel M. Scheer, Easton, for appellant.
Daniel G. Spengler, Michael Vedomsky, Asst. Dist. Attys., Easton, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix,*fn* Larsen, Flaherty and Kauffman, JJ. Flaherty, J., filed a dissenting opinion in which O'Brien and Roberts, JJ., joined.
The question raised in this appeal is whether the evidence presented was legally sufficient to sustain the jury's verdict of guilt. Fred Smith, Jr. was tried and found guilty by a jury on charges of burglary, theft and conspiracy. Post-verdict motions were denied and appellant was sentenced to a term of imprisonment of one to three years and required to make restitution of one-third of the amount taken in the
burglary as well as being assessed the cost of prosecution. A direct appeal to the Superior Court resulted in affirmance and we granted review.
On October 14, 1975, a small safe containing approximately $3,000.00 in paper currency and change and other personal papers was removed from the apartment of Edward Faust. Three men in an automobile, which was conclusively identified as belonging to appellant, were observed in the commission of this burglary. A general description, based upon racial origin, height and certain articles of clothing, was provided by a witness for the Commonwealth. However, the Commonwealth was unable to produce a witness who could positively identify appellant as being one of the three men. Equally as significant is the fact that there was nothing in the general description given that would positively exclude appellant as possibly being in the group described.*fn1
If the incriminating evidence against appellant was limited to the fact that his car was used in the commission of the crime we would agree that the evidence would not sustain the verdicts. Commonwealth v. Walker, 428 Pa. 244, 236 A.2d 765 (1968).
A review of this record reveals that there is other evidence pointing to appellant's guilt in addition to the fact that his vehicle was used in the perpetration of the crimes. The testimony established that the day after the crime appellant sold the vehicle in question and insisted upon receiving new registration plates, ...