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filed: May 14, 1982.


No. 34 Harrisburg Term, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, No. 1222 CD 1980.


Jeffery M. Cook, Assistant Public Defender, Harrisburg, for appellants.

William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Brosky, Wieand and Montemuro, JJ. Brosky, J., files a dissenting opinion.

Author: Wieand

[ 299 Pa. Super. Page 379]

Carol Payne was tried non-jury and convicted of theft by unlawful taking.*fn1 On direct appeal, after post trial motions were denied and sentence imposed, she argues that the evidence was insufficient to support the conviction. We disagree and affirm the judgment of sentence.

In determining the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the fact finder could properly have based the verdict, and then determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Tate, 485 Pa. 180, 182,

[ 299 Pa. Super. Page 380401]

A.2d 353, 354 (1979); Commonwealth v. Johnson, 273 Pa. Super. 14, 17, 416 A.2d 1065, 1067 (1979). The Commonwealth is not required to prove guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence; but guilt must be proven and may not rest upon mere suspicion and surmise. Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Reed, 276 Pa. Super. 467, 469, 419 A.2d 552, 553-554 (1980); Commonwealth v. Cichy, 227 Pa. Super. 480, 482-483, 323 A.2d 817, 818 (1974). It must be remembered, moreover, that it is the province of the trier of the facts to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence. Commonwealth v. Stockard, supra; Commonwealth v. Tate, supra; Commonwealth v. Hinchcliffe, 479 Pa. 551, 556, 388 A.2d 1068, 1071, cert. denied 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978); Commonwealth v. Yost, 478 Pa. 327, 332, 386 A.2d 956, 959 (1978); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975).

When viewed in the light most favorable to the Commonwealth, the evidence establishes the following fact pattern. On the evening of June 18, 1980, appellant encountered Juan Martinez in a Harrisburg tavern. Appellant explained that she had been experiencing difficulty with her landlord and needed a new place to live. Martinez, who had been an acquaintance of appellant for almost fifteen years, invited appellant to stay at his apartment. The invitation was accepted, and the same night appellant went with Martinez to the latter's apartment. There appellant was shown the apartment and, specifically, the cameras and photographic equipment which appellant kept in a closet of his bedroom.

Upon awakening the following morning, Martinez observed that appellant was still sleeping and left the apartment without waking her. When he did so, he locked the doors to the apartment and took the only keys with him. Appellant had no keys; and no one else had keys. When Martinez returned later on the same day the doors were still

[ 299 Pa. Super. Page 381]

    locked. Appellant, however, was gone, and so were cameras and photographic equipment having an estimated value of $1,500. There had been no forcible entry made to the apartment. That evening, without any communication with Martinez, appellant returned to and resumed occupancy of her own quarters.

Appellant testified on her own behalf. Her testimony precluded the possibility that a third person had entered the apartment at her invitation while Martinez was absent. She said that she had slept until after noon, when she decided to return to her own apartment. Upon departing the Martinez apartment, she said, she left the doors unlocked. However, the trial judge, as trier of the facts, did not believe this testimony. On the contrary, he expressly rejected it on the grounds that it was not credible. He also rejected appellant's contention that another, unidentified person might have entered the apartment and removed the cameras and equipment after appellant had returned to her own apartment.

The evidence found credible by the trial judge, although circumstantial, was sufficient to prove appellant's guilt beyond a reasonable doubt. It was not proof merely of presence, as appellant contends, but proof of circumstances which eliminated all persons other than appellant as the possible thief. She and she alone, according to the Commonwealth's evidence, was inside the apartment, had access to the photographic equipment and an opportunity to remove the same. No one else could have entered the apartment without forcibly breaking into it, and this, according to the evidence, did not occur.

The decision in Interest of Wood, 277 Pa. Super. 606, 419 A.2d 1316 (1980), is not apposite. In that case, the Commonwealth showed only "opportunity" for the juvenile to take keys to his father's car. This was held insufficient to show that the juvenile was the thief, because the circumstantial evidence did not eliminate the possibility that the keys had been taken by another. See also and compare: Commonwealth v. ...

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