No. 2428 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. Misc. 80-011524, M.C. 80-05-706.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Wieand and McEwen, JJ. McEwen, J., files a concurring and dissenting opinion.
[ 296 Pa. Super. Page 350]
Jorge Rodriguez was tried in the Municipal Court of Philadelphia and found guilty of indecent exposure and corrupting a minor. A petition for certiorari on the grounds that the Commonwealth's evidence was insufficient to sustain the convictions was dismissed by the Court of Common Pleas of Philadelphia County, and this appeal followed. We
[ 296 Pa. Super. Page 351]
agree that the Commonwealth's evidence was insufficient and, therefore, reverse.
In determining the sufficiency of the evidence, the test is whether, accepting as true all the evidence of the Commonwealth and all reasonable inferences arising therefrom upon which the trier of fact could properly have reached its verdict, such evidence is sufficient in law to prove beyond a reasonable doubt that appellant was guilty of the crime of which he stands convicted. Commonwealth v. Burton, 450 Pa. 532, 534, 301 A.2d 599, 600 (1973). Although the Commonwealth does not have to establish guilt to a mathematical certainty, guilt must be proven and may not rest on mere suspicion and surmise. Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Reed, 276 Pa. Superior Ct. 467, 469, 419 A.2d 552, 553-4 (1980).
The crime of indecent exposure is defined in 18 Pa.C.S. § 3127, where it is provided that a person is guilty "if, for the purpose of arousing or gratifying sexual desire of himself or of any person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm."
The Commonwealth's only evidence came from a seven-year-old girl who testified that while she was seated in an alley near her home, appellant entered the alley and the following occurred:
"Q. What happened when he came up?
A. And he shaked his bird.
Q. What did he do with his bird?