Mеlvin Swerdlow was tried non-jury and was found guilty of theft by receiving stolen property, criminal trespass and criminal conspiracy in connection with the January 4, 1991, burglary of two homes located at 7643 and 7645 Overbrook Avenue in Philadelphia. Following the denial of post-trial motions, Swerdlow was sentenced to serve concurrent four (4) year terms of probation on his convictions for criminal trespass and conspiracy. Sentence was suspended on his conviction for theft by receiving stolen property. On direct appeal from the judgment of sentence, Swerdlow argues that the evidence presented at his trial was insufficient to sustain the trial court’s findings of guilt. After careful review, we are con *455 strаined to agree; and, therefore, we reverse the judgment of sentence and order that appellant be discharged.
The trial judge, in her post-trial opinion, summarized the evidence from appellant’s trial as follows:
At approximately 11:30 on the morning of January 4, 1991, Haverford Township Investigators Daniel Wallower and William Walker went to 7641 Overbrook Avenue in the city of Philadelphia to execute a warrant for the arrest of Martin Gruschin, a co-defendant in this case. Upon arriving at that address, the Inspectors heard a burglar alarm sounding two doors away at 7645 Overbrook Avenue. A woman then pulled up in a car and identified herself as a relative of Annette Bruno, the owner of 7645 Overbroоk Avenue. As the Inspectors spoke to the woman, Inspector Wallower noticed the defendant, Melvin Swerdlow, open the front door of his house at 7641 and waive [sic] to the Inspectors. The Inspectors had previously met the defendant as they attempted to locate the co-defendant Martin Gruschin.
The Inspectors then drove around the corner to the alley behind 7645 Overbrook Avenue. There they noticed Mr. Gruschin walking away from 7645 Overbrook Avenue and toward the City Line Shopping Center, which is located just behind the houses on the 7600 block of Overbrook Avenue. Inspector Wallower exited the car and followed Mr. Grus-chin into a Thrift Drugs drug store. Inside the store, Inspector Wallower observed Mr. Gruschin standing in a check-out line. Inspector Wallower came up behind Mr. Gruschin and escorted him to an empty check-out counter a few feet away. The Inspector then identified himself and informed Gruschin that he was under arrest. Coins, cash, and jewelry began “flyfing] out of the defendant’s hands” as he was arrested and lead [sic] outside. These items wеre recovered by a Thrift Drugs store employee who immediately turned them over to the inspectors. The jewelry recovered from Gruschin consisted of six rings which were later identified as having been stolen from the residence at 7643 Overbrook Avenue.
*456 Since the suspected burglary occurred within the city of Philadelphia, the Inspectors notified thе Philadelphia Police Department and the West Detectives [Division]. Detective Joseph W. Capone and other detectives of the Philadelphia Police Department’s Narcotics Forfeiture Unit were assigned to investigate the case. They arrived at the 7600 block of Overbrook Avenue while Gruschin was still in custody at the scene.
When the Philadelphia Police arrived at the scene, co-defendant Gruschin led them and the Haverford Township Inspectors to a garage located at the rear of 7643 Over-brook Avenue. A panel had been kicked out of the garage door. [The owner of 7643 Overbrook Avenue, Ms. Margo Kinno, knew the defendant Melvin Swerdlow to be her next door neighbor, but she had never given him permission to use her garage.] Inside the garage Inspector Wallower found a pillowcase containing jewelry, a small television, a telephone answering machine, a flashlight and articles of clothing. These items were confiscated by the Haverford Township police, turned over to West Detectivеs [Division], and later returned to their owners.
On the afternoon of January 4, 1991, Annette Bruno, the owner of 7645 Overbrook Avenue, filed a formal report of the burglary of her residence. An initial investigation by the Philadelphia Detectives failed to reveal the manner in which the co-defendant Gruschin and the defendant Melvin S[w]erdlow gained entry into Annette Bruno’s house. On January 8, 1991, Detective Capone returned to the house to inspect for signs of entry. Detective Capone observed that all the usual means of entry — doors, windows, skylight— were secure. He then went to the front bedroom on the second floor, where he discovered that a ceiling panel had been removed from a closet ceiling. Further invеstigation revealed a 24 inch high crawl space above the bedroom ceiling and a hole in the party wall between the houses at 7645 Overbrook Avenue and 7643 Overbrook Avenue — the party wall between 7645 Overbrook Avenue and 7647 Over-brook Avenue was intact.
*457 Detective Capone then went to 7643 Overbrook Avenue, which is the residence of Ms. Mаrgo Kinno. The detective told her that he was investigating a burglary of 7645 Overbrook Avenue, and that it appeared that someone had gained entry to the residence through the crawl space above her front, second floor bedroom. Ms. Kinno then gave Detective Capone permission to inspect the crawl space. This inspection revealed a break in the party wall between Ms. Kinno’s residence and the Swerdlow residence at 7641 Overbrook Avenue. [Ms. Kinno testified at trial that it would cost her $600.00 to repair the break in her party wall.]
Detective Capone then asked Ms. Kinno if she had noticed anything missing from her house. At first she said that she had not, but after looking around, she discovеred that some of her rings were missing. At trial, Ms. Kinno testified that on the day of co-defendant Martin Gruschin’s arrest, January 4, 1991, she locked her front door and left for work at approximately 7:30 a.m. (the rear door had been nailed shut some time before) and that there were no signs of forced entry when she returned home at about 4:00 p.m.
Detective Caponе left Ms. Kinno’s residence and went to the Swerdlow house at 7641 Overbrook Avenue. There the Detective had a conversation with the defendant Melvin Swerdlow and the defendant’s mother. During the course of this conversation, the Detective asked the defendant if he recalled anything about January 4, 1991, the day of the burglaries. The defendant responded thаt he remembered talking to the Haverford Township Inspectors outside his house. Detective Capone then asked the defendant’s mother if he could inspect her second floor, front bedroom, which he then did.
Trial Court Opinion at pp. 1-5 (footnotes incorporated into text).
Based upon these facts the trial court concluded that аppellant and Martin Gruschin had conspired to use appellant’s house to break into crawl spaces above neighboring homes and thus gain entrance to such homes so that Gruschin could then *458 steal jewelry and other property therefrom. With respect to appellant’s participation in this conspiracy, the trial court reasoned as follows:
That the defendant Melvin Swerdlow was involved in breaking through the party walls is evidenced, in part, by the fact that he resided in the Swerdlow residence, and thus had the opportunity to break through to the adjacent houses. Second, further evidence of a conspiracy is supplied by this court’s finding that the defendant engaged in the commission of the Bruno burglary by acting as lookout and attempting to distract the Haverford Township Investigators as co-defendant Gruschin attempted to flea [sic]. This finding is based on the fact that as Annette Bruno’s burglar alarm sounded, the defendant opened his front door and attempted to distract the Investigators by waving to them as Gruschin fled through the rear alley way.
Trial Court Opinion at pp. 6-7.
In evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the trier of fact could have found that each and every element of the crimes charged was еstablished beyond a reasonable doubt.
Commonwealth v. Smith,
The crime of criminal conspiracy is defined by statute as follows:
(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to сommit such crime.
18 Pa.C.S. § 903(a). “An individual is guilty of conspiracy if, with the intent to promote or facilitate a crime, he or she agreed to aid another person in the attempt, solicitation, planning, or commission of the crime.”
Commonwealth v. Neckerauer,
“ ‘An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almоst invariably extracted from the circumstances that attend its activities.’ ”
Commonwealth v. Kennedy,
Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene оf the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred. Commonwealth v. Carter,272 Pa.Super. 411 ,416 A.2d 523 (1979).
*461
Commonwealth v. Lamb,
“Tо prove a criminal conspiracy the evidence must rise above mere suspicion or possibility of guilty collusion.”
Commonwealth v. Burdell,
The evidencе in the instant case, when viewed in the light most favorable to the Commonwealth, suggests that Martin Gruschin, appellant’s alleged co-conspirator, used a crawlspace located in the front bedroom of the home in which appellant resided with his mother, in order to break into and steal property from two neighboring homes. There was no *462 еvidence, however, that appellant had agreed to participate in the commission of these burglaries, or even that he knew of Gruschin’s activity. The relationship, if any, existing between Gruschin and appellant was not shown by any evidence at appellant’s trial. The evidence showed only that a neighbor, Margo Kinno, had on prior оccasions observed Gruschin coming and going from the Swerdlow residence and that the Haverford Township Police had an arrest warrant for Grus-chin listing the Swerdlow home as his residence. 1 Absent evidence of any relationship between appellant and Gruschin or evidence that appellant knew that Gruschin was committing burglaries of neighboring homes, there is simply no basis from which it can be inferred that appellant agreed to aid Gruschin in connection with such burglaries. There is nothing but the suspicion which arose because Gruschin may have stayed for a time in the home of appellant and his mother. 2
Given the paucity of the evidence connecting appellant with Gruschin’s crimes, the trial сourt’s conclusion that appellant was acting as a lookout is sheer speculation. It is not a legitimate inference to be drawn from any evidence in this case. The mere fact that appellant opened his door and waved to the Haverford Township Police when they arrived is alone insufficient to permit an inferencе that it was done with an intent to distract the police while Gruschin escaped. Without evidence that appellant even knew that Gruschin was then engaged in committing a burglary, it cannot be concluded logically that he was acting as a lookout when he waved to the police. To repeat, therefore, the trial court’s suggestion that appellant was acting as a lookout is simply unsupported by evidence and could have been based solely on speculation and *463 suspicion. There is in the record received no evidence on which to find appellant guilty of conspiring with Grusehin to commit any of the burglaries.
Appellant’s convictions for criminal trespass and thеft by receiving stolen property, therefore, must also fall. In finding appellant guilty of these offenses, the trial court concluded that appellant was responsible for the acts of his co-conspirator Grusehin. Because there was insufficient evidence to establish an unlawful confederacy, however, appellant cannоt be deemed criminally responsible for Gruschin’s actions. The evidence does not support a finding that appellant was Gruschin’s accomplice. With respect to accomplice liability, the Superior Court has said:
An accomplice is one who “knowingly and voluntarily cooperates with or aids another in the commission of а crime.” Commonwealth v. Carey,293 Pa.Super. 359 , 373,439 A.2d 151 , 158 (1981). See: 18 Pa.C.S. § 306. See also: Commonwealth v. Jones,213 Pa.Super. 504 , 508,247 A.2d 624 , 626 (1968). To be an accomplice, “one must be an active partner in the intent to commit [the crime].” Commonwealth v. Fields, supra460 Pa. at 319-320 ,333 A.2d at 747 ; Commonwealth v. McFadden,448 Pa. 146 , 150,292 A.2d 358 , 360 (1972). “An [accomplice] must have done something to participate in the venture.” Commonwealth v. Flowers,479 Pa. 153 , 156,387 A.2d 1268 , 1270 (1978).
Commonwealth v. Brady,
It is not enough that appellant was present in his home at the time of Gruschin’s commission of the burglary. Although this circumstance may have been sufficient to arouse one’s suspicion, it was insufficient to establish beyond a reasonable *464 doubt that Swerdlow was a participant in the crime. The Commonwealth cannot rest on surmise аnd suspicion but must offer evidence proving guilty knowledge and participation. This it failed to do. The judgment of sentence, therefore, must be reversed.
The judgment of sentence is reversed, and appellant is discharged.
Notes
. The Commonwealth, in its brief, has represented that appellant “falsely denied Gruschin s presence when police werе looking for him.” This statement is simply unsupported by any evidence at appellant’s trial. The evidence discloses that on one occasion prior to January 4, 1991, the Haverford Township Police spoke with appellant about locating Gruschin. There is no evidence that appellant gave any false statements to police.
. This fact, it would seem, is no more incriminating of appellant than of his mother. No one contends, however, that Mrs. Swerdlow was aware of Gruschin’s illegal activities.