226 Pa. Super. 177 | Pa. Super. Ct. | 1973
Dissenting Opinion
Dissenting Opinion by
Appellant contends that there was insufficient evidence to convict him of possession of burglary tools.
Appellant was found by a police officer early one February afternoon on the second floor of a vacant house, standing in the hall with a pile of copper tubing at his feet. The officer testified that he searched appellant and found a screwdriver in his rear pocket. The officer further testified that the front door appeared to be jimmied in that there were pry marks on the lock side of the door, and that the rest of the house was secured. Appellant was arrested and tried on charges of bur
Appellant’s position is that a screwdriver by itself is not a burglary tool within the meaning of the Act of June 24, 1939, P. L. 872, §904, 18 P.S. §4904, and that there was insufficient evidence to show that he possessed it as such a tool.
The Act provided: “Whoever has in his possession any tool, false-key, lockpick, bit, nippers, fuse, force-screw, punch, drill, jimmy, or any material, implement, instrument or other mechanical device, designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling-house, or door, shutter or window of a building of any kind, with the intent to use such tools or instruments for any of the felonious purposes aforesaid, is guilty of a misdemeanor, . .
In Commonwealth v. Clinton, 391 Pa. 212, 217-18, 137 A. 2d 463, 465-66 (1958), the defendant had four electric drills, a screwdriver, a hatchet, and an electric razor in his possession when arrested. He explained his possession of these tools by saying that he and his brother were in the business of installing television and high-power aerials. Said the Court: “There are many tools and implements which are suitable for felonious breaking and entering, the possession of which would not subject the possessor to criminal prosecution. Saws, hammers, nails, tongs, awls, knives, mattocks, scythes, files, pliers, gimlets, pincers, wrenches, gauges, and spatulas, all can be used for breaking and entering a house, but they still retain their non-criminal status. . . . Even a corkscrew can be employed to get into a house, but the law would come to a sorry pass indeed
In Commonwealth v. Tatro, 223 Pa. Superior Ct. 278, 297 A. 2d 139 (1972), it was held that there was sufficient circumstantial evidence to support a conviction of possession of burglary tools. There it appeared that a screwdriver in conjunction with gloves, flashlights, and a walkie-talkie were jettisoned from a car stopped by the police, and laboratory tests showed that the screwdriver had been used the day before in a burglary in the same area.
In the present case the circumstantial evidence was insufficient to establish felonious intent. The screwdriver was not found with other tools. The owner of the property never testified, so there was not the testimony usual in such cases as these that appellant was on the premises without permission. There was no evidence to show when the door had last been seen without pry marks. Nor was there any evidence such as proof of a laboratory test showing that the screwdriver had been used on the door. The burden was on the Common
The judgment of sentence should be reversed.
Lead Opinion
Opinion
Judgment of sentence affirmed.