Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, Criminal, No. 83-10, 466.
Before Cavanaugh, Cercone and Lipez, JJ. Cercone, J. files a Dissenting Memorandum.
Judgment of sentence affirmed.
CERCONE, J. files a Dissenting Memorandum.
I respectfully must disagree with the result reached by my colleague[s]. Upon review of the pertinent case law and of the evidence in this case, I have concluded that the evidence is sufficient to support appellant's conviction for theft of the porch swing but is insufficient to support his conviction for the burglary which occurred inside the cabin. The facts of this case are fully set forth in the opinion of the court below.
It is axiomatic that in order to sustain a conviction, the facts and circumstances proved must be of such a character as to establish guilt beyond a reasonable doubt. Commonwealth v. Garrett, 423 Pa. 8, 12, 222 A.2d 902, (1966). 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. Id. The inference of guilt must be based on facts and conditions proved; mere conjecture or surmise is not sufficient. See Commonwealth v. Cohen, 203 Pa. Super. 34, 199 A.2d 139 (1964). See also Commonwealth v. Moore, 226 Pa. Super. 32, 311 A.2d 704 (1973).
Although the mere presence of a defendant at or near the scene of the crime, without more, is never a sufficient circumstance upon which guilt may be predicated, Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972), I believe the evidence shows more than mere presence, as to the porch swing, and is sufficient to sustain that conviction.
Appellant's conviction for the theft of the porch swing is supported by both circumstantial and substantive evidence. The testimony of Mr. Emig established not only appellant's presence at the scene (through his truck tracks) but that the stolen porch swing was in the back of appellant's truck three miles away from the scene within the twelve hour period when the theft must have occurred. Appellant cites Commonwealth v. Walker, 428 Pa. 244, 236 A.2d 765 (1968), for the proposition that the mere fact that a person's car is used in commission of a crime is insufficient evidence to sustain a conviction for that crime. However, Walker is distinguishable because in that case there was no evidence that the appellant himself had been at or near the scene of the crime. Here, the evidence clearly shows that appellant himself was driving his truck near the scene. Based on all of this evidence, I feel that the evidence is sufficient to sustain appellant's conviction for theft of the porch swing.
On the other hand, I am of the view that the evidence of appellant's participation in the burglary of the cabin is so weak and inconclusive that as a matter of law the inferences of fact necessary to establish guilt could not be reasonably drawn. See Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).
Appellant's presence at the scene of the crime was established. This fact, however, in the absence of other evidence indicative of his participation in the burglary, did not warrant submission of the case to the jury. The mere fact that there was a piece of plywood on the floor of the truck bed does not establish that it was concealing the items stolen from the cabin. The fact that there were footprints around the cabin and on the cabin door is of no evidentiary value without further evidence that they were appellant's footprints. Since the record contains no evidence of appellant's complicity in the crime, other than mere presence at the scene, his conviction for burglary of the cabin cannot stand. Accordingly, I would vacate his sentence, dismiss all charges against appellant except for those relating to the theft of the porch swing, and remand for a new sentencing.