No. 332 Philadelphia, 1981, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Schuylkill County at No. 212 of 1980.
James J. Riley, Pottsville, for appellant.
Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.
Cavanaugh, Brosky and Montgomery, JJ.
[ 304 Pa. Super. Page 322]
Appellant, Robert F. McCormick, Jr., was convicted by a Schuylkill County jury of burglary*fn1 and theft by unlawful taking.*fn2 After the denial of post-verdict motions, appellant was sentenced to 11 to 22 months imprisonment, and to pay restitution to the victim, for burglary; sentence was suspended on the theft conviction. Appellant's sole contention in this appeal is that the evidence was insufficient to sustain his convictions. We agree and, accordingly, vacate the judgments of sentence and discharge appellant.
In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088,
[ 304 Pa. Super. Page 3231090]
(1980); Commonwealth v. Cannon, 297 Pa. Super. 106, 109, 443 A.2d 322, 323 (1982). It is settled law that while guilt may be proved by direct or circumstantial evidence, it may not rest upon mere suspicion or conjecture. Commonwealth v. Jones, 291 Pa. Super. 69, 72, 435 A.2d 223, 225 (1981); Commonwealth v. Beauford, 286 Pa. Super. 297, 300, 428 A.2d 1000, 1002 (1981). Using this standard, the facts adduced at appellant's trial may be summarized as follows:
The victim, Mark Bevan, lived alone in a first floor apartment at 1441 Howard Avenue in Pottsville, Pennsylvania. On the evening of April 1, 1980, appellant, whom the victim has known for several years, dropped by for a visit. While talking to appellant, Bevan went to his bedroom closet and took some cash from a hiding place inside a pair of jeans. The evidence does not make clear whether appellant observed Bevan removing the money. Shortly thereafter, the two men left the victim's apartment together and appellant drove away in his girlfriend's cream-colored Plymouth. Bevan later returned to his apartment and placed $350 in his closet hiding place, leaving a total of approximately $450.
The following morning, the victim locked his apartment and left for work. At approximately 11:40 a.m., appellant called the victim's place of employment and spoke to Brian Bevan, Mark's brother. Appellant asked if the victim was at work and, when told that he was, asked that Mark call him at lunch time. At trial, Brian testified that he had spoken to appellant at a similar hour on five or six occasions in the past. Mark returned appellant's phone call shortly after noon but received no answer.
At 11:45 a.m. on April 2nd, the victim's upstairs neighbor, Ervin Bisel, looked outside his window and saw a woman, carrying a tan bag, leave the apartment building and enter a cream-colored Plymouth. At noon, Bisel saw appellant go into the main entrance of the building and exit running two to three minutes later. In his hands was a small tan package which he did not have upon entering the building. Appellant ...