Com. v. Cimaszewski

• Decision Date: 20 March 1972
• Citation: 288 A.2d 805,447 Pa. 141
• Parties: COMMONWEALTH of Pennsylvania v. Richard CIMASZEWSKI, Appellant.
• Court: Pennsylvania Supreme Court

Page 805

288 A.2d 805

447 Pa. 141

COMMONWEALTH of Pennsylvania v. Richard CIMASZEWSKI, Appellant.

Supreme Court of Pennsylvania.

March 20, 1972.

[447 Pa. 142] Stanton A. Berkowitz, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Chief, Appeals Div., Philadelphia, James Wilson, James T. Owens, Asst. Dist. Attys., Philadelphia, for appellee.

Before JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

POMEROY, Justice.

Appellant Richard Cimaszewski was tried before a judge, sitting without a jury, and convicted of attempted burglary and possession of burglary tools. Following a denial of post trial motions, appellant was sentenced to a term of 3 to 10 years imprisonment for attempted burglary, and received a suspended sentence for possession of burglary tools. The Superior Court affirmed Per curiam, without opinion, 217 Pa.Super. 820, 270 A.2d 241. We granted allocatur and now reverse the conviction of possession of burglary tools and affirm the conviction of attempted burglary. ¹

It is axiomatic that where the prosecution has won the verdict at trial, appellate courts are bound to review the evidence in the light most favorable to the Commonwealth together with all reasonable inferences flowing therefrom. Commonwealth v. Miller, 445 Pa. 282, 284 A.2d 739 (1971); Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (1970). Viewing the evidence in this light, the following appears.

At approximately eleven o'clock on the night of January 20, 1970, police officers arrived at a building known as 2313 E. Cumberland Street, Philadelphia, in response to a 'burglary in progress' report pertaining to a real estate office located at that address. They found the door loose, but not openable and heard noises coming from within the building. Looking down the outside of the structure, Officer Anthony Briscella saw two men run from the rear of the building down a nearby alley. The officer jumped into his police vehicle and drove around the block to the place where the alley exits into a street. At that point Officer Briscella saw a man run from the alley. The man was later apprehended and identified as one Stanley Cimaszewski, appellant's brother. Another officer, Dewald, proceeded on foot to the rear of theproperty through a walkway adjoining the real estate office, and while so doing 'heard noises coming from the fences.' When he reached the rear of the structure, the officer '. . . looked down through the (adjoining back) yards and observed the defendant, Richard, standing on top of a shed roof' which was located three lots away. The officer called to the person he observed to halt, climbed over the fences separating the several yards, and apprehended appellant, who had by then climbed down to the yard. The Commonwealth's evidence also showed that a window of the real estate office had been 'jimmied', and its lock broken; a flashlight which did not belong to any of the employees of the agency was found on a desk located next to an office safe.

I. ATTEMPTED BURGLARY

Appellant challenges the sufficiency of the circumstantial evidence upon which his conviction of attempted burglary was predicated. While it is of course true that the Commonwealth must prove every essential element of a crime beyond a reasonable doubt, Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968), it is equally well established that the Commonwealth may sustain this burden by means of wholly circumstantial evidence. Commonwealth v. Sullivan, Pa., 286 A.2d 898 (1971); Commonwealth v. Slavik, 437 Pa. 354, 261 A.2d 583 (1970); Commonwealth v. Thomas, 429 Pa. 227, 239 A.2d 354 (1968). The line between the requisite degree of persuasion and impermissible speculation is, admittedly, sometimes difficult to draw. We are satisfied that in this case the evidence was sufficient to permit the trier of fact, here the judge, to conclude that appellant was guilty of attempted burglary beyond a reasonable doubt.

Without repeating the summary of the testimony given above, in essence it is this: A report is received by the police that a burglary is 'in progress' at the building in question; two police officers, responding immediately, hear noises coming from within the building, the front door of which has been...