229 PASUPER 123 - Commonwealth v. Miller

¶1Dissenting Opinion by

Hoffman, J.:

¶2Appellant contends that the Commonwealth’s evidence is insufficient to convict him of simple robbery.

¶3The record read in the light most favorable to the Commonwealth discloses the following pertinent facts: Officer Michael McNamara testified that on September J, 1971 around 8:10 A.M. he was driving his private car and was stopped at a red light at Lindley Avenue and Windrim Avenue after coming off his night tour of duty. He observed a Black male come up behind the complainant, spin her around, knock her down, and run off with her pocketbook. He followed the man in his car and saw him get into the passenger side of a 1966 Buick Skylark Convertible, black top with blue bottom, bearing the Pennsylvania 1971 License number 757275, which was double parked about a quarter of the way down the block, on 13th Street, from Lindley, in the middle of the street.

¶4Officer McNamara followed directly behind the car for about six or seven minutes until he lost it on the *127Expressway. During this period of time the driver of the Buick turned twice to look in the direction of Officer McNamara and both times McNamara testified he got a good look at the driver.1 After tracing the registration information with Harrisburg, the police obtained a search warrant and the appellant was arrested on September 13,1971. The alleged purse-snatcher was never apprehended.

¶5“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. Bailey, 448 Pa. 224, 227, 292 A. 2d 345 (1972). In the Baileycase,2 supra, which is strikingly similar to the instant case, our Supreme Court felt that there was insufficient evidence to convict Bailey of being an accessory before the fact. The court further stated that as far as being an accessory after the fact, the most that the Commonwealth established was that Bailey was in the vicinity of the crime and in the company of the alleged felon *128after the crime. There was no proof brought forth which established Bailey was aware the crime had been committed, or that he was aware the man in the back seat had committed the crime. Id. at 228. Following the precepts of Bmley, the Commonwealth, in the instant case, has not proved beyond a reasonable doubt that the appellant was involved in any capacity in criminal activity.3

¶6The judgment of sentence of the lower court should be reversed, appellant’s conviction vacated, and appellant discharged.

¶7 Officer McNamara observed the driver from a 90 degree angle and for a total of 2 to 3 seconds both times. His descriptions were as follows: “It was a slender man. He had a goatee and a mustache, and was completely bald. Looked like a Mr. Kleen so to speak.” Officer McNamara was also able to make an in-court identification, although in court the appellant was no longer bald and had shaved off his goatee.

¶8The facts of the case were: A larceny was committed by an unknown party; a few minutes after the crime the appellant, Bailey, was seen in the company of the alleged thief, but the stolen property was not seen; when the alleged thief was asked to get out of the car, which Bailey was driving, Bailey drove off without responding, subsequently, Bailey was arrested and the vehicle searched, but the thief and property were never located.

¶9 Our Supreme Court has rejected the proposition that the presence at the scene of the crime in the company of the alleged conspirators is by itself sufficient to sustain a conviction. Commonwealth v. Garrett, 423 Pa. 8, 222 A. 2d 902 (1966).