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COMMONWEALTH PENNSYLVANIA v. ROBERT H. FOX (09/13/85)

filed: September 13, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT H. FOX, APPELLEE



No. 1429 Pittsburgh, 1984, Appeal from Order of the Court of Common Pleas, Criminal Division, of Mercer County, No. 133 Criminal, 1984.

COUNSEL

Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellant.

Lorinda L. Hinch, Assistant Public Defender, Mercer, for appellee.

Spaeth, President Judge, and Rowley and Wieand, JJ.

Author: Wieand

[ 345 Pa. Super. Page 466]

Robert Fox was tried by jury and was found guilty of an attempt to commit criminal trespass.*fn1 The trial court granted a motion in arrest of judgment because it deemed the evidence insufficient to sustain the convictions. The Commonwealth appealed. We reverse.

A criminal trespass occurs when a person, knowing that he is not privileged to do so, breaks into a building. 18 Pa.C.S. § 3503(a)(1)(ii). An attempt occurs when a person, with intent to commit a specific crime, does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S. § 901.

Although the Commonwealth must establish each and every element of the offense charged beyond a reasonable

[ 345 Pa. Super. Page 467]

    doubt, it can rely in whole or in part on circumstantial evidence. Commonwealth v. Stanley, 453 Pa. 467, 468-469, 309 A.2d 408, 410 (1973); Commonwealth v. Carter, 329 Pa. Super. 490, 497, 478 A.2d 1286, 1288-1289 (1984). Nevertheless, a conviction must be based on more than conjecture or suspicion. Commonwealth v. Stores, 317 Pa. Super. 109, 117, 463 A.2d 1108, 1112 (1983); Commonwealth v. Larkins, 235 Pa. Super. 19, 21, 341 A.2d 204, 205 (1975). The test for sufficiency is whether, accepting as true, all the evidence and all the reasonable inferences deducible from the evidence upon which the trier of fact could have based the verdict, the evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Rambo, 488 Pa. 334, 335-336, 412 A.2d 535, 536 (1980); Commonwealth v. Carpenter, 330 Pa. Super. 382, 384, 479 A.2d 603, 604 (1984); Commonwealth v. Woodbury, 329 Pa. Super. 34, 37, 477 A.2d 890, 891 (1984); Commonwealth v. Taraschi, 327 Pa. Super. 179, 185, 475 A.2d 744, 747 (1984). We consider the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976); Commonwealth v. Smith, 333 Pa. Super. 155, 157-8, 481 A.2d 1352, 1353 (1984).

The evidence in this case established that on February 23, 1984, Corporal Edward Holiga of the Hermitage Police Department was parked in a marked cruiser car directly south of and across the road from Donofrio's Food Market. At approximately 11:15 p.m., Holiga was notified by radio of an alarm drop at Donofrio's. Holiga immediately crossed the street and used his spotlight to examine the front doors at the main entrance of the food market. Finding nothing amiss, he drove into the parking area at the north side of the building. There he observed that a pane of glass had been broken out of one of the windows in a rear garage door. As Holiga started to exit from his car, Fox emerged from behind a rubber curtain adjacent to the garage door. Holding a sweater and a jacket over his arm, Fox jumped from the loading dock and headed toward Holiga. Holiga drew his revolver and told appellee to stop.

[ 345 Pa. Super. Page 468]

Appellee continued walking until Holiga cocked his service revolver. At that point, Fox stopped, put down the sweater and jacket, and placed his hands on top of ...


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