concurring.
The evidence in this case, as later explained, does not establish the guilt of the appellant beyond a reasonable doubt. His judgment of sentence should be reversed and the appellant ordered discharged. Since, however, a majority of this Court does not agree, I join in that portion of Mr. Justice Pomeroy’s opinion which reverses the judgment of sentence because the trial court unduly restricted the voir dire examination.
Instead of being awarded a new trial, however, the proper disposition of this case would be to discharge the appellant. We have often stated the test to be applied by the appellate courts when faced with a challenge to the sufficiency of the evidence:
“Where a claim of sufficiency of the evidence has been raised, it is our task on appellate review to determine whether accepting as true all of the evidence and all of the 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 a defendant is guilty of a crime or crimes of which he has been convicted. Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); Commonwealth v. Williams, 450 Pa. 327, 329, 301 A.2d 867, 869 (1973); Commonwealth v. Wright, 449 Pa. 358, 360, 296 A.2d 746, 747 (1972); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). Further, there need not be direct evidence to establish the elements of *142the crime. Commonwealth v. Graham, 467 Pa. 417, 358 A.2d 56 (1976); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976). This burden may be sustained by means of wholly circumstantial evidence. Commonwealth v. Stanley, 453 Pa. 467, 469, 309 A.2d 408, 410 (1973); Commonwealth v. Amato, 449 Pa. 592, 594, 297 A.2d 462, 464 (1972); Commonwealth v. McFadden, 448 Pa. 146, 149, 292 A.2d 358, 360 (1972); Commonwealth v. Chester, 410 Pa. 45, 50, 188 A.2d 323, 327 (1963). As we noted in Commonwealth v. Stanley, supra:
‘We also recognize that while the Commonwealth must establish every essential element of a crime beyond a reasonable doubt, this burden may be sustained by means of wholly circumstantial evidence.’ Id. 453 Pa. at 469, 309 A.2d at 410.”
Commonwealth v. Courts, 468 Pa. 613, 364 A.2d 684 (1976).
Although each element of the crime charged may be established solely through circumstantial evidence, the proof must lead to more than mere suspicion and conjecture, Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975). Circumstantial evidence may be said to be sufficient to establish any of the crime’s essential elements only if the inferences arising from it prove the fact in question beyond a reasonable doubt. Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972).
The prosecution’s entire case against Hayford Christian was carefully constructed of circumstantial evidence. That construction, however, fails to establish beyond a reasonable doubt each of the elements of the crimes charged. Appellant should therefore be discharged.
The evidence produced by the prosecution at appellant’s trial is summarized in the majority opinion as follows:
“The evidence against appellant was largely circumstantial and consisted of the following: Testimony by a female neighbor of appellant that at approximately 2:00 a. m. on the morning of July 9, following a party in the housing *143complex where they resided, Christian had made sexual advances to her which she had refused; testimony that Christian had not returned to his residence during the early morning hours of July 9; witness reports that Christian had been seen on the morning of July 9 coming from the area in which the crime occurred; evidence that Christian’s clothes were covered with a murky substance, possibly matching the mud from the swampy area in which the body was found, but that the articles of clothing had been immediately cleaned before the police investigators were able to examine them on the day of the crime; and testimony of a prisoner who overheard the appellant make an incriminating statement while incarcerated and awaiting trial.” (at p. 134)
As can readily be seen from the above summary, there was no direct evidence placing appellant at the location where the victim’s body was found or at the victim’s house at any time on the night of the homicide. In fact, the prosecution’s own expert witnesses gave evidence tending to establish that appellant was not at either location. For example, a police detective testified that the vegetation on the path leading from the victim’s house to the location where the body was found was so thick that he had trouble going through it in daylight without tearing his uniform. Although the perpetrator of this crime had violently assaulted the decedent, and dragged her struggling body from her home over severe and dangerous terrain without the benefit of light, the prosecution’s own witnesses testified that when appellant was examined by police on July 9, the day the murder had been committed, he was found to be completely free of any cuts, bruises, bites, scratches or any visible signs that he might have participated in this crime. Furthermore, the clothing that appellant wore at the party on the evening of July 8, and which was found by the police in appellant’s bathroom, was thoroughly examined by the representatives of the crime lab and no damage to the garments was noted. In addition, trace evidence was found at the scene of the *144crime which strongly indicated that someone else had perpetrated the crime. Prosecution witnesses testified that two palm prints were found on the metal arms of a folding summer chair placed near the window which had been broken to permit the murderer to enter the Mattes’ house. These prints were not placed by an individual sitting in the chair, but by someone facing the chair, as if the chair was lifted and used to break the window. The prints were not those of appellant or the victim. A red fiber was removed from a figurine on the nightstand in Mrs. Mattes’ room. This fiber did not match any of the Mattes’ clothing, nor did it match the appellant’s clothing. The police crime lab also determined, after careful scientific analysis, that samples of mud taken from appellant’s shoes and boots did not match samples of mud taken from the murder scene, and that the material obtained from the drain of the tub where appellant’s clothes had been washed did not match any material or dirt obtained by the crime lab from the murder scene. Samples of mud taken from the steps and front porch of the Mattes’ home, however, were similar to that collected from the murder scene.
The only other evidence presented at trial by the prosecution in its attempt to show that appellant committed the crimes charged was the “incriminating statement” referred to in the above quoted excerpt from the majority opinion. Examination of the record, however, reveals that this allegedly incriminating statement, even if made, was not incriminating at all. (The prisoner who testified that he overheard the statement referred to above and in the majority opinion has since recanted that testimony and said that no such statement was ever made in his presence.) The statement which the prosecution’s witness testified to hearing was allegedly made by appellant in response to a question put to him by another inmate at Allegheny County Jail where he was incarcerated following his arrest on the instant charges. The fellow inmate, according to the prosecution’s witness at trial, said,
*145“Why the hell did you kill her?”
appellant, according to this same witness, replied,
“Well, what the fuck. They can’t prove it anyhow.”
This statement is not an admission that appellant was involved in the perpetration of the crimes for which he was being tried. See, Commonwealth v. Jefferson, 430 Pa. 532, 243 A.2d 412 (1968) (dissenting opinion of Roberts, J.).
A criminal conviction may not be based upon mere surmise or conjecture. Although it may accurately be said that the prosecution’s evidence in this case cast suspicion upon appellant, that evidence failed to establish beyond a reasonable doubt that appellant committed the acts for which he was tried.
NIX, J., joins in this concurring opinion.