No. 1213 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, at Nos. 1467, 1468, 1470 August Term, 1979.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Montemuro and Van der Voort, JJ. Montemuro, J., files a dissenting opinion.
[ 309 Pa. Super. Page 511]
Appellant was convicted of burglary, criminal mischief, theft by unlawful taking, theft by receiving stolen property, possession of an instrument of crime, and conspiracy on March 20, 1980.*fn1 Appellant was sentenced on the burglary and conspiracy charges to two concurrent terms of three (3) years probation under the Psychiatric Unit. The Court also ordered that an Alcoholic Evaluation be done and that appellant attend a mental health clinic if necessary. The Court conditioned the probation on a requirement that appellant remain employed. Sentence was suspended on the criminal mischief charge.
On August 14, 1979, at approximately 12:22 a.m., Philadelphia police officer, James McGinty responded to a silent alarm at Gerace's Jewelry Store at 4424 Frankford Avenue. Upon arrival, the officer looked through the window of the jewelry store and saw two white males inside the building. On the scene investigation revealed that all entrances of the store were secured. Police called for a ladder company to bring a ladder to facilitate a check of the roof area. Officer McGinty found a hole in the roof which was approximately nineteen inches wide. Another officer found a small crowbar, screwdriver and pliers about eight to ten inches from the hole.
[ 309 Pa. Super. Page 512]
Both actors who had been spotted inside the store were apprehended. One was running from the roof and the other was trapped in an alley way. Both actors had merchandise from the store in their possession;*fn2 both were white male juveniles.
Approximately ten to fifteen minutes after the two males were seen in the store, appellant was found by police approximately fifty feet from the hole, two buildings away, on the roof of the Gas Company. The officer described appellant as lying up against a wall in a fetal position. He testified that it is possible to walk from the roof of the jewelry store to that of the Gas Company by stepping over three two-feet high partitions.
Both parties stipulated that the owner of the premises would testify that on the morning of August 14, 1979, he went to his jewelry store where he saw the ceiling was torn down and there was a hole approximately ten by twelve inches in the roof. He would have testified that he had been at the store at 5:30 the preceding evening and that it had been left secure.
Appellant made no attempt to flee, had no merchandise on him and presented no defense at trial. On the basis of the Commonwealth's evidence, the Court, sitting without a jury, found the appellant guilty on all counts. We reverse.
In evaluating appellant's sufficiency of the evidence argument, we must view the facts in a light most favorable to the verdict winner, giving such party the benefit of all reasonable inferences arising therefrom. Then, it must be asked whether the evidence and the reasonable inferences arising from it are sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Von Aczel, 295 Pa. Superior ...