No. 2704 PHILA., 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Montgomery County at No. 3260 - 79.
Gwanita G. Hester, Assistant Public Defender, Norristown, for appellant.
Stanley R. Ott, Sp. Prosecutor, Souderton, for Commonwealth, appellee.
Spaeth, Popovich and Montgomery, JJ.
[ 297 Pa. Super. Page 125]
This is an appeal from a judgment of sentence of burglary. Appellant argues that the evidence was insufficient, and, by new counsel, that trial counsel was ineffective. We have concluded that the evidence was not insufficient, but that appellant's claim that trial counsel was ineffective has arguable merit. We therefore remand for further proceedings.
In deciding the sufficiency of evidence, we must first accept as true all the evidence upon which the trier of fact could properly have based the verdict, and then ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974); Commonwealth v. Petrisko, 442 Pa. 575, 579-89, 275 A.2d 46, 49 (1971). However, guilt must be proved and not conjectured. Commonwealth v. Wilson, 225 Pa. Superior Ct. 513, 312 A.2d 430 (1973). So regarded, the evidence may be summarized as follows.
[ 297 Pa. Super. Page 126]
On July 25, 1979, at approximately 5:00 a. m., Peter Gerhard, while sleeping in an apartment above his candy store, was awakened by a loud noise in the rear of his store. He looked out his rear window and saw a man getting off a ladder directly under his window. Because of the angle, Gerhard was able to see only the man's head, forehead, cheeks, mustache, and nose. TT. 19-21. After watching the man remove a fan from above the door, he went to the store office to telephone the police. However, the telephone was dead, and he returned to the rear window of his apartment, from which he saw the man remove a television set and merchant's scale from the store building. Id. at 20-22. He also saw that the man was wearing a black T-shirt and white jeans. Id. at 26. Gerhard left the store building by the front door and called the police from a nearby call-box. Id. at 22-23. When he got back to his store, the man had gone but the television set and scale were still by the back door. Id. at 24. While waiting for the police to arrive, Gerhard saw the man he had seen behind his store "duck down [an] alley and start peeking out." Id. at 25. When the police arrived, moments later, Gerhard looked around, saw the man again, and said to the police, "That's him. Get him." Id. at 27-28. The police arrested the man, who proved to be appellant. After being placed under arrest, appellant gave the police an alias. From the time Gerhard first saw the man to the time of appellant's arrest was eight to ten minutes. Id. at 31.
Appellant's claim of insufficiency may be summarily dismissed. While it is true that Gerhard did not see appellant's full face, he saw enough to be sure of his identification.
In determining whether counsel was effective, we engage in "both an independent review of the record, . . . and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives." ...