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COMMONWEALTH PENNSYLVANIA v. LEONARD H. SWIFT. COMMONWEALTH PENNSYLVANIA (09/11/81)

filed: September 11, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LEONARD H. SWIFT. COMMONWEALTH OF PENNSYLVANIA, V. LEONARD SWIFT, APPELLANT



No. 286 OCTOBER TERM, 1979, No. 405 OCTOBER TERM, 1979, APPEAL FROM DENIAL OF MOTION FOR ARREST OF Order ENTERED JANUARY 12, 1979, BY THE COURT OF COMMON PLEAS, CRIMINAL DIVISION, OF BUCKS COUNTY at No. 526 of 1978.

COUNSEL

Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellant in No. 286 and appellee in No. 405.

Cynthia M. Weaver, Assistant Public Defender, Doylestown, for appellant in No. 405 and appellee in No. 286.

Spaeth, Cavanaugh and O'Kicki, JJ.*fn* Cavanaugh, J., files a concurring statement.

Author: O'kicki

[ 291 Pa. Super. Page 92]

A jury returned a verdict of guilty of the crime of Burglary and Conspiracy to Commit Burglary on June 22, 1968; the same jury found the defendant not guilty of the Possession of an Offensive Weapon. On January 12, 1979, at the time of sentencing, the Trial Court vacated its earlier Order of December 22, 1978, wherein the Trial Court had denied all post-trial motions. At the time of sentencing the Trial Court granted the Defendant's Motion for a New Trial and denied the Motion to Arrest Judgment. Cross Appeals were filed by the Defendant and by the District Attorney to this Court.

Two basic questions arise from the underlying facts of this instant case. Was the Commonwealth's evidence sufficient to support the jury verdict? If so, did the Trial Court exceed its authority granting the motion for a new trial? And, if not, did the Trial Court err in refusing the Defendant's motion in Arrest of Judgment?

The Croyden V.F.W. (V.F.W.) was located on the first floor of a three story building in Croyden, Bristol Township, Bucks County, Pa. In the early morning hours of January 20, 1978, while fresh snow was falling, the Bristol Town police received a call at 4:19 a. m. that a burglary was in progress at the V.F.W. An officer witnessed two sets of fresh footprints leading from a tire track to the building. One set of footprints led from the building through the woods to the place on the State Road where the Defendant was placed in custody. The other suspect (Amareld) was found inside the V.F.W. Upon searching the Defendant, along with displaced liquor bottles both inside and outside the building, police found lead filled gloves on his person. The window at the V.F.W. had been broken. The Commonwealth seeks to infer that Defendant broke the window in furtherance of the conspiracy or burglary. Through the footprints Commonwealth seeks to infer that these belong to Defendant since Defendant was found near the point where the prints left the boards and entered the State Road.

[ 291 Pa. Super. Page 93]

The primary issue is the sufficiency of the Commonwealth's evidence, i. e. could their presentation at trial conceivably support the jury verdict?

It has been well established law in this Commonwealth that the test for sufficiency of evidence in a criminal case is whether, viewing all the evidence admitted at trial, in light most favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Coades, 260 Pa. Super. 327, 394 A.2d 575, 576 (1978).

The evidence and the reasonable inferences taken in the light most favorable to the Commonwealth establish that two people went from Bellview Avenue to the V.F.W. Building, the window was smashed, liquor bottles were piled both inside and outside the window, one suspect was caught inside the building, one set of tracks led away from the building to where the defendant was caught and the defendant was found to have had lead-knuckle gloves in his pocket, and most importantly, the defendant lied as to his presence at the scene.

Although mere presence at the scene is insufficient to convict, Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1973), Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973), Commonwealth v. Leach, 455 Pa. 448, 317 A.2d 293 (1974) and mere presence or flight from the scene is not, in itself, sufficient to establish a conviction, Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975), the jury could, and did, conclude that Amareld and Swift, the defendant, went to the V.F.W. building together, that one or both of them smashed the window, that Amareld went inside to get the liquor, that the bottles were handed out the window to Swift and that when the police arrived, Swift fled through the woods to the point of his capture. There is ...


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