No. 2000 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County at No. 473/1980.
Richard R. Fink, Levittown, for appellant.
C. Theodore Fritsch, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Cavanaugh, McEwen and Hoffman, JJ.
[ 312 Pa. Super. Page 580]
Appellant Mark Trafford was found guilty, following a non-jury trial, of arson, 18 Pa.C.S.A. § 3301(b). Post-verdict motions were denied and appellant was sentenced to two years probation and ordered to pay the costs of prosecution and make restitution for damages. The only claim raised on appeal is that the evidence was insufficient to sustain the verdict. We agree and therefore reverse the judgment of sentence.
In evaluating the sufficiency of the evidence after a guilty verdict, the evidence must be viewed in a light most favorable to the Commonwealth, and the Commonwealth must be given the benefit of all reasonable inferences arising therefrom. Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963). But before a conviction will be sustained, "the facts and circumstances proved must be of such a character as to establish guilt beyond a reasonable doubt. And while the Commonwealth is not required to remove all doubt to a mathematical certainty, evidence to convict an accused of a crime must be something more than evidence that merely raises a suspicion of guilt. The inference of guilt must be based on facts and conditions proved; mere conjecture or surmise is not sufficient." Commonwealth v. Garrett, 423 Pa. 8, 12, 222 A.2d 902, 905 (1966) (citations omitted).
All of the evidence relied upon by the prosecution to support its theory in the instant case was circumstantial. "It is true that circumstantial evidence, in itself, may be sufficient to establish the commission of the crime and the accused's connection therewith." Commonwealth v. Simpson, 436 Pa. 459, 463, 260 A.2d 751, 754 (1970). "Indeed, it is clear that arson, by its very nature, is rarely committed in the presence of others, and a refusal to convict on circumstantial evidence alone would be tantamount to an invitation to commit the crime." Commonwealth v. Colon, 264 Pa. Super. 314, 325, 399 A.2d 1068, 1073 (1979). Extra caution
[ 312 Pa. Super. Page 581]
is due, however, in reviewing a conviction based solely on circumstantial evidence.
[B]ecause of the fact that it is circumstantial and that a grave wrong may be done to an innocent man by reasoning from circumstances not sufficiently cogent in themselves or as connected, and particularly not sufficiently exclusive of every innocent hypothesis, the courts have been very sedulous to prevent an innocent man being found guilty where the evidence does not conform to the acceptable standards.
Rodriquez v. United States, 232 F.2d 819, 821 (5th Cir. 1956); cited with approval in Commonwealth v. Santana, 460 Pa. 482, 486, 333 A.2d 876, 877 (1975).
In order to convict a person of arson, the prosecution must establish beyond a reasonable doubt (1) that there was a fire, (2) that it was willfully and maliciously set, and (3) that the defendant was the guilty party. Commonwealth v. Carthon, 467 Pa. 73, 354 A.2d 557 (1976); Commonwealth v. Dolan, 287 Pa. Super. 202, 429 A.2d 1171 (1981); Commonwealth v. Colon, 264 Pa. Super. 314, 399 A.2d 1068 (1979). Appellant concedes that the first two elements have been established. There was a fire in the club house of the Middletown Trace Apartments, Bucks County, on December 14, 1979, and the evidence demonstrated that the fire was deliberately set. Appellant contends, however, that the evidence was insufficient to ...