No. 3181 Philadelphia, 1983, Appeal from the Judgment of Sentence entered November 23, 1983, Court of Common Pleas, Berks County, Criminal Division at No. 82180501.
William F. Ochs, Jr., Public Defender, Reading, for appellant.
George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
Olszewski, Del Sole and Johnson, JJ. Olszewski, J., files a dissenting opinion.
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Appellant, Lori B. Key, takes this appeal from her conviction on charges of theft by unlawful taking or disposition, receiving stolen property, and criminal conspiracy. Appellant raises but one issue for our consideration: Whether the evidence was insufficient to convict appellant, in that the Commonwealth proved only appellant's mere presence at the scene. Finding the evidence to fall far short of that needed to support appellant's conviction beyond a reasonable doubt, we agree with appellant and hereby reverse all convictions and order appellant discharged.
Reviewing the evidence in the light most favorable to the Commonwealth, as verdict winner, the record discloses the following: On October 20, 1982, at 3:00 p.m., appellant began working her shift at the David Crystal warehouse in Reading. Appellant was folding and bagging in a department with fifteen other people. The other three individuals who were arrested with appellant later that day were working in departments different from appellant. John Thomas was working on the loading docks, Pamela Green was
[ 342 Pa. Super. Page 33]
working in the shipping department, and Randolph Simmons was carrying boxes to the workers in the shipping department. At 6:30 p.m., while the night shift was working, the manager of security for the warehouse, David Valleau, made a complete check of the outside of the facility, including the trash bins, and did not see any merchandise hidden outside the building.
At 7:00 p.m., all of the employees in the warehouse were permitted to leave the plant to go out to eat lunch, although they had to be back by 7:30 p.m. During lunchbreak, at approximately 7:20 p.m., William Girton, a security guard for David Crystal, was sitting in his car, which was parked across the street from the warehouse, when a car with two women in the front seat drove by him. Girton did not notice if anyone was seated in the back. Girton's attention was again drawn to the car when he saw it leave one of the parking lots at the warehouse and drive into the adjacent lot. Girton observed the car come to a stop and then saw two men, later identified as Simmons and Thomas, get out of the back seat and run up to the building. From where he sat, Girton could see that the men went to an area near the loading dock where they got two boxes. In a matter of seconds, the men ran back to the car. Girton called for assistance over a walkie-talkie to another security guard, Charles Johnson. When Girton and Johnson converged on the vehicle, one of the two male suspects had already entered the back seat of the car. (The record does not disclose whether this was Simmons or Thomas.) The other man was in the process of getting into the car. The car was a two-door model, and Girton and Johnson saw that appellant, who was in the passenger seat, was pulling the seat back forward to allow the men to enter. Pamela Green was behind the wheel.
The boxes taken by Simmons and Thomas were of a type generally available throughout the warehouse and could be obtained without special permission. Both boxes were closed and one box had no labels at all on the outside. The other had a label which indicated that the contents were
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supposed to be the bottom half of other smaller ...