No. 1917 October Term, 1979, Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County, at No. 239 of 1979.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Bernard V. DiGiacomo, Norristown, for appellee.
Hester, Cavanaugh and Van der Voort, JJ.
The Commonwealth has appealed from an order of the trial court which granted the defendant's Motion in Arrest of Judgment. Appellee, Frank D'Angelo, was tried with co-defendants, Eileen Sandor and Marsden Seiferth, in a non-jury trial before the Honorable Robert W. Honeyman. At the conclusion of the Commonwealth's case a demurrer was sustained as to the defendant Marsden Seiferth, and
thereafter, after all the evidence was heard the court found Eileen Sanford not guilty on all informations and found appellee guilty of theft by deception.*fn1 Appellee filed a motion for a new trial and a motion in arrest of judgment. The trial judge sitting alone heard the motions and granted the motion in arrest of judgment. He did not act on the motion for a new trial.
The only issue before us is whether or not the post-trial court erred in finding that there was insufficient evidence to sustain the conviction. The standard to be applied in this determination was set forth in Commonwealth v. Madison, 263 Pa. Super. 206, 210, 397 A.2d 818, 820 (1979):
In testing the sufficiency of evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next, we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are 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. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976); Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973). This inquiry is bounded by two poles. On the one hand, the Commonwealth 'does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence.' Commonwealth v. Jacobs, 247 Pa. Super. 373, 372 A.2d 873 (1977); Commonwealth v. Larkins, 235 Pa. Super. 19, 341 A.2d 204 (1975). On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient. Commonwealth v. Moore, 226 Pa. Super. 32, 311 A.2d 704 (1973).
See also Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979); Commonwealth v. Helm, 485 Pa. 315, 402 A.2d
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(1979); Commonwealth v. Fassett, 260 Pa. Super. 323, 394 ...