Com. v. Herman
| Decision Date | 03 April 1974 |
| Citation | 323 A.2d 228,227 Pa.Super. 326 |
| Parties | COMMONWEALTH of Pennsylvania v. Barry L. HERMAN, Appellant. |
| Court | Pennsylvania Superior Court |
John H. Chronister, Public Defender, for appellant.
Morrison B. Williams, First Asst. Dist. Atty., Kenneth J. Sparler, Asst. Dist. Atty., and Donald L. Reihart, Dist. Atty., for Commonwealth, appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
The only issue in this appeal is whether the Commonwealth presented sufficient evidence to convict appellant of the crimes of attempt with intent to commit a burglary and the possession of burglar tools.
On May 31, 1972, during the early morning hours, Kenneth Gosnell, who resides at 668 West Market Street, upon hearing a 'prying' sound from outside, observed from a fourth floor window two men behaving suspiciously at a door leading into Rehmeyer's store on South Belvidere Avenue in the City of York. Gosnell summoned his wife, who confirmed her husband's observations, and she proceeded to go next door and call the police. Upon her return, and after her husband left the window, she continued to observe the men in their activity. After a car drove by, the men terminated the activity and walked a short distance south on Belvidere Avenue, stopped on the corner of Mason Avenue for a brief time, and one of the men was seen by Mrs. Gosnell to bend over and apparently drop something in the gutter along the curb. Another witness, a Mrs. Schroll, observed the men turning the corner and proceed west on Mason Avenue, which runs parallel to Market Street, and a half-block south of it. Other than the vague descriptions of one man wearing a light shirt and dark pants, and the other man wearing a dark shirt and light pants, the witnesses could not identify either of the individuals.
During the same interval of time two men were at the corner of Mason and Belvidere when a police car arrived. Officer Hose, driver of the car, approached the scene with his headlights off, and observed two men stooped over at the corner. The appellant and co-defendant were apprehended a short distance west on Mason Avenue from the corner of Belvidere by Officer Hose, and were dressed in the manner described by the witnesses. Upon investigation, Officer Hose and other officers found a tire iron and a large screwdriver, common burglary tools, at the corner of Mason and Belvidere where Officer Hose had observed these two men stooping. The officers also discovered that the door to Rehmeyer's store had been damaged and was held secure only by a safety chain. The door damage and marks thereon were consistent with markings from the tools the police had recovered. Appellant and co-defendant were found guilty following a jury trial.
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. 1 Although the Commonwealth does not have to establish guilt to a mathematical certainty, and may in the proper case rely wholly on circumstantial evidence, 2 the conviction must be based on more than mere suspicion or conjecture. 3 It is sufficient if the circumstances are consistent with criminal activity even though they might likewise be consistent with innocent behavior. Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955); Commonwealth v. Gibson, 201 Pa.Super. 573, 193 A.2d 690 (1965).
'(T)he test in determining if the evidence is sufficient to sustain a criminal conviction is, whether accepting as true all of the evidence of the Commonwealth, and all reasonable references arising therefrom, upon which the (fact finder) could properly have reached its verdict, was it sufficient in law to prove beyond a reasonable doubt that the appellant was guilty of the crime for which he stands convicted.' Commonwealth v. Burton, 450 Pa. 532, 534, 301 A.2d 599, 600 (1973).
We are convinced that upon viewing the evidence in the light most favorable to the Commonwealth, appellant's guilt was established beyond a reasonable doubt. It has been often held that the mere presence of a defendant at or near the scene of the crime, without more, is not a sufficient circumstance upon which guilt may be predicated. Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966); Commonwealth v. Craft, 215 Pa.Super. 477, 258 A.2d 537 (1969). However, we believe that the evidence in this instance shows more than mere presence. See Commonwealth v. Moore, 226 Pa.Super. 32, 311 A.2d 704 (1973).
The testimony of Mr. and Mrs. Gosnell established the fact that the two men attempted...
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