No. 2396 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Philadelphia County, Family Court Division, Juvenile Branch, at No. 7550-79-8
Karl Baker, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Hoffman and Cirillo, JJ.*fn* Cirillo, J., files dissenting opinion.
[ 286 Pa. Super. Page 298]
Appellant, Anthony Beauford, age 17, was held delinquent after he was convicted of charges of attempted burglary, criminal trespass and criminal conspiracy. Post-trial motions were denied, and Beauford was placed on probation. In this appeal, Beauford contends that the trial court had insufficient evidence to convict him. The trial court denied appellant's motion for a new trial and arrest of judgment. We remand to the trial court.
[ 286 Pa. Super. Page 299]
A Philadelphia police officer, Edward Dillon, discovered three males at Bill's Beer Distributor in Philadelphia at 1:22 a. m. The police had been notified of allegedly suspicious conduct by persons at that location. The arresting officer went there in response to a radio message. Officer Dillon testified:
Upon arriving at this location I observed three black males on the front steps with their backs turned facing the doorway; at which point upon applying my brakes, I observed one defendant, later identified as the defendant, Mr. Beauford, run west, excuse me, run east on the south sidewalk up onto the front porch of the location 2062 West Indiana Avenue.
At which time, I jumped out of my patrol vehicle, ran up on the front porch and apprehended Mr. Beauford.
Officer Dillon later returned to Bill's Beer Distributor where he discovered the front door had been jimmied open and a window of that door smashed. The record contains no evidence which indicates that persons witnessed appellant breaking the glass or jimmying the door. The trial court's decision, therefore, was based entirely upon circumstantial evidence.
The operative language in Officer Dillon's statement is, "I observed three black males on the front steps with their backs turned facing the doorway . . . (.)" It is not entirely clear from this statement which way the three individuals were facing. However, the record appears to indicate that they were facing toward the doorway. Even if we accept the position that they were facing the doorway, we are still faced with the absence of any facts in the record demonstrating that the Commonwealth possessed any evidence indicating that the three persons found on the doorstep had jimmyed the door open. Thus, the Commonwealth's case lacked any evidence connecting the appellant with the crimes he allegedly committed.
This court shall review all the findings of the trial court in a light most favorable to the Commonwealth. Commonwealth v. Blackburn, ...