No. 792 October Term, 1979, Appeal from Order of the Court of Common Pleas, Family Court Division, Juvenile Branch, of Philadelphia County, No. 9312-78-11, J171331.
Joseph M. Casey, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Shertz and Wieand, JJ. Shertz, J., files a dissenting statement.
[ 291 Pa. Super. Page 71]
Frank Jones, a juvenile, was adjudicated delinquent on a charge of burglary. On appeal he contends that the evidence was insufficient to support the court's finding. We agree.
The evidence produced at the delinquency hearing disclosed that at approximately five o'clock on the morning of November 29, 1978, Police Officer Charles Tapper received a radio call instructing him to proceed to a grocery store on the corner of 18th and Fontain Streets in Philadelphia.*fn1 Because another patrol car was approaching from the direction of Fontain Street, Officer Tapper proceeded to the scene by way of Page Street. He observed appellant emerging from an alley at the end of the block behind the grocery store. The officer testified that appellant came tearing out of the alley and started up Page Street. Appellant then changed direction, cutting across a lot toward Norris Street, and headed toward the rear of his home, where he was apprehended. Officer Tapper took appellant to the grocery store, where it was discovered that a window grating and pane had been broken. Several cartons containing eggs were found in the alley behind the grocery store. Officer Tapper testified that he saw no one else either in the alley or on the street. The prosecutor and appellant's counsel stipulated that the grocery store owner, if called, would have testified that his store, at 2027 North 18th Street, Philadelphia, had been entered without his permission and that forty-five dollar's worth of eggs had been taken.
[ 291 Pa. Super. Page 72]
The test for determining the sufficiency of the evidence to support a conviction is "whether accepting as true all the evidence, together with all reasonable inferences therefrom upon which the [factfinder] could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Ilgenfritz, 466 Pa. 345, 348, 353 A.2d 387, 389 (1976), quoting from Commonwealth v. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974); Commonwealth v. Green, 464 Pa. 557, 565, 347 A.2d 682, 686 (1975). In addition, we are to consider the evidence in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Ilgenfritz, supra; Commonwealth v. Green, supra; Commonwealth v. Rife, 454 Pa. 506, 509, 312 A.2d 406, 408 (1973).
Circumstantial evidence alone may be sufficient to establish guilt beyond a reasonable doubt. Commonwealth v. Lewis, 472 Pa. 235, 243, 372 A.2d 399, 403 (1977); Commonwealth v. Simpson, 436 Pa. 459, 463, 260 A.2d 751, 754 (1970). In such case, however, "'the theme of guilt must flow from the facts and circumstances proved, and be consistent with them all.' Commonwealth v. Clinton, 391 Pa. 212, 218, 137 A.2d 463, 466 (1958). If the conviction is based wholly on . . . suspicion and conjecture, it cannot stand. Commonwealth v. Townsend, 428 Pa. 281, 286-87, 237 A.2d 192, 195 (1968); Commonwealth v. Garrett, 423 Pa. 8, 12, 222 A.2d 902, 905 (1966); Commonwealth v. Deyell, 399 Pa. 563, 567, 160 A.2d 448, 450 (1960); and, Commonwealth v. Clinton, supra." Commonwealth v. Lewis, supra, quoting from Commonwealth v. Simpson, supra 436 Pa. at 464, 260 A.2d at 754.
It is well established that the mere presence of a person at the scene of a crime is insufficient to prove his involvement. Commonwealth v. Goodman, 465 Pa. 367, 370-71, 350 A.2d 810, 811-12 (1976); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Stanley, 453 Pa. 467, 471, 309 A.2d 408, 411 (1973); Commonwealth v. Garrett, 423 Pa. 8, 13, 222 ...