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COMMONWEALTH PENNSYLVANIA v. CHARLES PAUL AXE (03/20/81)

filed: March 20, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES PAUL AXE, APPELLANT



No. 1025 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Mercer County, Criminal Div. at Nos. 5, 19 of 1979.

COUNSEL

Joseph P. Sebestyen, Jr., Sharon, for appellant.

Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellee.

Spaeth, Wickersham and Lipez, JJ. Lipez, J., files a concurring and dissenting statement.

Author: Spaeth

[ 285 Pa. Super. Page 291]

This is an appeal from judgments of sentence for robbery*fn1 and receiving stolen property.*fn2 We have concluded that the judgment of sentence for receiving stolen property should be set aside for insufficient evidence,*fn3 but that the judgment of sentence for robbery should be affirmed.

1

On January 2, 1979, at about 11 p. m., two men committed a robbery at the North Sharon Fire Hall in Mercer County. The robbers took $1,000 in bingo receipts. The police found two sets of footprints in the snow, leading to the fire hall from a blue Pontiac, parked one block behind the hall. No footprints led from the hall back to the Pontiac, but two sets did lead from the hall in another direction. The police

[ 285 Pa. Super. Page 292]

    followed these, and one set led to appellant, hiding behind a tree. The other set led to a garage, and from there, with the help of two dogs, to the house of appellant's co-defendant, Guy Charles Veres.

Earlier on January 2, sometime before 9:15 p. m., the house of Martin Stein, in Sharon, had been burglarized and various items taken from it. The police found two sets of footprints leading from a broken window of the house to tracks made by an automobile.

Appellant does not argue that the evidence was insufficient to show that he was one of the robbers in the fire hall. His argument is that it was insufficient to show that he received any of the items stolen from the Stein house. The argument that the evidence was sufficient to show that appellant received stolen goods from the Stein house may be stated as follows. When the police followed Veres's footsteps from the fire hall to the garage, they found a hat, and inside it, some of the items stolen from the Stein house. The police also found some of the items stolen from the Stein house in the blue Pontiac parked behind the fire hall. The Pontiac was owned by Veres's brother. From this evidence, it is apparent that Veres first committed the burglary of the Stein house, sometime before 9:15 p. m., and then the robbery of the fire hall, at about 11 p. m. We know from the footprints outside the Stein house that he committed the burglary with someone else. It is reasonable to infer that that someone else was appellant, on the basis of two facts: first, appellant was Veres's fellow robber at the fire hall; and second, the police found in the Pontiac a set of keys to appellant's Plymouth.

Without doubt, the Commonwealth was entitled to prove its case entirely by circumstantial evidence. Commonwealth v. Herman, 271 Pa. Super. 145, 412 A.2d 617 (1980); Commonwealth v. Patterson, 257 Pa. Super. 206, 390 A.2d 784 (1978); Commonwealth v. Adams, 254 Pa. Super. 62, 385 A.2d 525 (1978). The circumstances proved, however, had to fit so closely together as to justify a finding of guilt beyond a reasonable ...


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