Commonwealth v. James

Opinion by

Watkins, P. J.,

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Delaware County, by the defendant, Herbert James, after conviction by a jury of burglary, larceny amd conspiracy. He had been charged with receiving stolen goods but that charge was withdrawn prior to commencement of the trial. Post-trial motions were denied by the court en banc with one judge dissenting and he was sentenced to pay the costs of prosecution and to undergo imprisonment for not less than two (2) years nor more than four (4) years.

The question raised by this appeal is the sufficiency of the evidence. There is no complaint concerning the conduct of the trial or the charge of the court.

The facts are as follows: On the night of September 22, 1972, at about 11:19 P.M. police officers responded to a police radio call of a burglary in progress at the Skies and Ties Men’s Shop, Chester, Pennsylvania. The store has one entrance by way of two glass doors. In front of the doors there is a “Cyclone fence”. Upon arriving at the store, the police officers stopped their car in front of a door that had been broken. They observed a co-defendant, not in this appeal, inside the “Cyclone fence” attempting to climb over the gate. Outside the gate they found various articles of clothing. Wilson, the co-defendant, fought with the officers but was subdued. As this was going on, other officers arrived and went to the rear of the store. There was no rear entrance to the store itself, but there is a stairway which leads to an apartment on the second floor. The officers checked the area and found a fifty (50) gallon drum directly underneath the stairway. On top of the drum were found thirteen pairs of trousers. About eight' to ten feet away from the drum, the defendant James was found in a crouched position under the *189stairway. He gave no response to a question as to what he was doing under the stairway.

The premises had been checked by the police at about 11:10 P.M. and the store doors were intact and secured. The owner of the store identified the trousers as being his goods. The clothing found in front with Wilson was also identified as his goods.

The defendant did not take the stand nor was any testimony produced in his defense. While it is true that the Commonwealth must prove every essential element of a crime beyond a reasonable doubt, it is well established that the Commonwealth may sustain this burden by means of wholly circumstantial evidence. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A. 2d 805 (1972); Commonwealth v. Slavik, 437 Pa. 354, 261 A. 2d 583 (1970).

It is also well settled that the test in a criminal case of the sufficiency of the evidence is: “Whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.” Commonwealth v. Paquette, 451 Pa. 250, 253, 301 A. 2d 837 (1973); Commonwealth v. Williams, 450 Pa. 327, 301 A. 2d 867 (1973).

The defendant contends that since the Commonwealth’s evidence consisted only of the fact that the appellant was apprehended at night while hiding in the vicinity of a store near where merchandise which had been taken was found is insufficient to sustain the verdicts. The appellant relies heavily on the cases of Commonwealth v. Roscioli, 454 Pa. 59, 309 A. 2d 396 (1973) and Commonwealth v. Stanley, 453 Pa. 467, 309 A. 2d 408 (1973).

In Roscioli, supra, the Supreme Court by a plurality of four decision reversed a conviction of burglary since *190the defendant’s presence in the vicinity of a crime was explained and there was no evidence that demonstrated that the defendant had participated in the perpetration of the crime.

In Stanley, supra, it was held by the Supreme Court that mere presence or nearness to the scene of the crime is insufficient to sustain a conviction of attempted burglary since the defendant’s involvement could not be established. The Commonwealth did not prove the time when the building was entered, and four hours had elapsed between the time the building in question was locked and the time the defendant was found at the scene.

Unlike these cases, the instant case presents facts and circumstances which establish more than mere proximity of the defendant to the scene of the crime. Testimony clearly established that ten minutes prior to the burglary the store in question was locked and secured. Then at 11:19 P.M. in response to a burglary in progress radio call, police officers arrived at the scene and found the store broken into, a man climbing over a gate from the store with goods taken from the store at his feet. In the rear of the store they found the defendant hiding under a stairway some ten feet from goods taken from the store. All of this took place in a short period of time, at most, about fifteen (15) minutes from the call until the arrests were made. At 11:10 P.M. a check had been made on the security of the store and at 11:19 P.M., the police were on their way to a burglary in progress. This evidence with the reasonable inferences that the jury could draw therefrom is far more than mere suspicion or conjecture as was the case in Stanley and RoseioK, supra.

Unlike Roscioli and Stanley, supra, the element of time, proximity to the scene of the crime and proximity to the goods stolen form a sufficient basis in law to sustain the counts of burglary and larceny.

*191In addition to all the other facts, it is pertinent to the charge of conspiracy that there was no rear entrance or exit to the store. The defendant was ten feet away from the stolen goods and he was hiding under the stairway. How did he and the goods get there? He does not say, but surely the jury may draw inferences. This together with the co-defendant climbing the front fence with stolen merchandise at his feet constitute the “concerted conduct” to support the conviction of conspiracy.

Judgment of sentence affirmed.