Commonwealth v. LowryCommonwealth v. Lowry
- Reporters:
- , ,
- Before:
- Brósky
Appellant Anthony James Lowry was convicted of theft by the Honorable John W. O’Brien, sitting without a jury. Post-trial motions were denied and appellant was sentenced to 11% to 23 months imprisonment and five yеars probation. This direct appeal followed. Because we agree that the *279 evidence is insufficient to sustain the conviction, we reverse the judgment of sentence and discharge appellant. 1
Appellant was charged with the theft of a diamond-coin pendant from the Boss Jewelry store. Lеonard Boss, the store’s owner, testified that, on the morning of January 21, 1980, he had been working on the pendant at his workbench, in the work area of the store. An employee, William Masters, also worked in that area and Shirley Flosnik, a secretary, worked at а desk in the showroom area. Appellant, then an employee of IBM, arrived at the store around noon to install a newly-purchased typewriter at Ms. Flosnik’s desk. At that time, Masters and Boss wеre eating lunch at a separate table in the work area. Appellant installed the typewriter, which had been stored in a box in the work area. After he installed it, he brought the box to а location between the two workbenches and asked Bоss and Masters about something else being in the box. Ms. Flosnik testified that shе then came to the doorway of the work area and asked what appellant was looking for. He replied that it didn’t mаtter and returned to the typewriter, answered a few questions for her and left the store. Mr. Boss discovered the pendant was missing bеtween 1:00 p.m. and 1:30 p.m. The pendant was never found although appellant’s apartment was searched three days latеr.
The test for sufficiency of the evidence is whether, accepting as true all of the Commonwealth’s evidence and all reasonable inferences therefrom, it is sufficient to prоve guilt beyond a reasonable doubt. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972). In the instant case, the Cоmmonwealth’s evidence shows that appellant was prеsent and that the pendant was missing sometime after his departure. There is no evidence that he ever saw or handled the pendant or even knew of its presence. Moreover, other people were also in the vicinity of the pendant. Although these circumstances may be suspicious, we cannоt sustain a conviction based on mere suspicion or cоnjecture. *280 Commonwealth v. Keller, 249 Pa.Super. 384, 378 A.2d 347 (1977). Mere presence at the scene of a crime cannot, of course, sustain a conviction. Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972). The Commonwealth contends, however, that appellant appeared nervous and in a hurry to leave after his last trip tо the work area and that this evidence distinguishes this case from the “mere presence” cases. Our Supreme Court has held, hоwever, that even flight cannot convert presence into proof of guilt. Commonwealth v. Bailey, id.; Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976). Since there was no other evidence linking аppellant to the pendant, we must reverse the conviction and discharge appellant.
Notes
. Because of this disposition, we need not reach the ineffectiveness of counsel claims also raised by appellant.