No. 01541 Philadelphia 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Berks County at No. 81165701.
Charles D. Younger, Assistant Public Defender, Reading, for appellant.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.
Cirillo, Del Sole and Popovich, JJ. Cirillo, J., files a dissenting opinion.
[ 333 Pa. Super. Page 325]
The appellant, John Paschall, Jr., contends that the evidence was insufficient to support his conviction for burglary and conspiracy. Because we find that the Commonwealth showed nothing more than appellant's mere presence at the crime scene, we must reverse the judgments of sentence and order the appellant discharged.*fn1
Viewing the evidence in a light most favorable to the verdict-winner, as well as all reasonable inferences therefrom, see Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976), the following is deducible from the record: At approximately 7:15 a.m. on the 28th day of August, 1981, Robert Sutton was looking out of his living room window. As he did so, he "noticed 2 black males coming out of the field at the end of the . . . street. They walked up the
[ 333 Pa. Super. Page 326]
street. They got approximately parallel to Mr. Beasley's house [, which was situated across the street from Sutton's residence,] and walked across his lawn and right to the back of his house." (N.T. 55) At this time, the weather was clear and it was daylight outside. Id.
Mr. Sutton stated that he "almost immediately" recognized one of the men as someone whom he had known socially for about a year as "Smokie." This was the appellant. Sutton also recalled his observation of appellant's face, at a distance of about 30-40 feet, lasted for 45-50 seconds. The witness' view of the appellant as he walked away from him and toward the Beasley home amounted to 30 seconds. Mr. Sutton also noticed that the appellant was wearing a black jacket with a tan stripe on each sleeve.
After Sutton watched the two men walk to the rear of his neighbor's house, he lost sight of them because from his vantage point he could not see if they entered the premises. Nonetheless, he phoned the police to report a "burglary in progress" before leaving for work at 7:30 a.m. The police arrived on the scene within 15-20 minutes of the call and found that the house had been unlawfully entered through a broken rear window on the first floor. The second floor bedroom had been ransacked and Mr. Beasley, who had gone to work at about 6:30-6:35 a.m. that morning, advised the police of the loss of $1,940 in jewelry (three watches, three chains and one ring), coins he had stored in a glass jar, cameras and a .380 automatic pistol. Most of the stolen merchandise was recovered in the woods located behind Mr. Beasley's residence stuffed into two pillow cases. This is consistent with the testimony of Melinda Oliver, also a neighbor, who saw two black males running from the back of Mr. Beasley's house into the woods nearby with pillow cases (two) in hand. However, she could not identify either of the fleeing felons or recall what they were wearing.
After the Commonwealth introduced evidence that Mr. Sutton had identified the appellant from a photographic ...