Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Perry County, Nos. 138 and 139 of 1986.
Nancy A. Patterson, New Bloomfield, for appellant.
Gloria J. McPherson, Assistant District Attorney, Shermans Dale, for Com., appellee.
Wieand, Popovich and Hester, JJ. Popovich, J., files a dissenting statement.
[ 385 Pa. Super. Page 281]
Duane E. Brady, a juvenile, was tried as an adult on charges of burglary, theft by receiving stolen property, and criminal conspiracy. At trial, the Commonwealth produced evidence which showed that on the afternoon of August 5, 1986, Brady sat in a car while the driver of the vehicle, Frederick J. Miller, left the vehicle, entered a residential dwelling through a window, removed items of property which included stereo equipment, a rifle, a shotgun, and a chain saw, and placed them in the trunk of the car. There was no evidence that Brady had exited the car or assisted Miller during these events. Later, during the evening of the same day, Brady was a passenger in the back seat of the same vehicle when Donald Miller,*fn1 an informant, drove
[ 385 Pa. Super. Page 282]
Fred Miller to a Mini-Mart where some of the stolen property was sold by Fred Miller to an undercover state trooper. After Fred Miller had sold the rifle and shotgun to the undercover state trooper for one hundred ($100.00) dollars, Miller gave Brady sixty ($60.00) dollars in repayment of a debt owed by Miller to Brady. On this evidence a jury found Brady guilty of burglary, theft by receiving stolen property, and conspiracy to commit theft by receiving stolen property.*fn2 The jury found Brady not guilty of conspiracy to commit burglary. A post-trial motion in arrest of judgment was denied, and Brady was sentenced to serve a term of imprisonment. On direct appeal, Brady contends that the Commonwealth's evidence was insufficient to show that he had participated in any culpable way in the offenses committed by Fred Miller.*fn3 We are constrained to agree.
[ 385 Pa. Super. Page 283]
"To sustain a conviction, the facts and circumstances which the Commonwealth prove must be such that every essential element of the crime is established beyond a reasonable doubt. Although the Commonwealth does not have to establish guilt to a mathematical certainty, and may in the proper case rely wholly on circumstantial evidence, the conviction must be based on more than mere suspicion or conjecture." Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973) (footnotes omitted). See also: Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975); Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. Weaver, 309 Pa. Super. 509, 455 A.2d 1199 (1982). However, in conducting appellate review to determine the sufficiency of the evidence we must determine "whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth Page 283} v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). Additionally, "[w]hen conflicts and discrepancies arise, it is within the province of the jury to determine the weight to be given each testimony and to believe all, part, or none of the evidence as they deem appropriate." Commonwealth v. Verdekal, 351 Pa. Super. 412, 419-420, 506 A.2d 415, 419 (1986). See also: Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975).
The only testimony about the burglary came from Fred Miller. He testified as follows:
Q. Did anyone go with you to that home?
A. Not inside the premises.
Q. How did you get there?
A. I drove up in a Fleetwood Cadillac.
Q. Was anyone with you in the car?
Q. The defendant here today?
Q. Did he know what you were planning to do?
Q. Why do you think he knew what you were ...