prints on cigarette package’s cellophane wrapper, found inside burglarized gas station which defendant had visited on at least one prior occasion
How later courts described this case
- prints on cigarette package’s cellophane wrapper, found inside burglarized gas station which defendant had visited on at least one prior occasion
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Jacobs, J.:
Appellant’s fingerprint was identified on a package of cigarettes which was found on the floor of a bur-glarised gas station. The package was lodged between a cigarette-vending machine, which had been partially pried open, and the wall of the building. I agree with, the majority that this evidence alone would not he sufficient to convict appellant of the burglary unless there were other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time *486 other than that of the crime. See McCargo v. State, 3 Md. App. 646 , 241 A.2d 161 (1968), cert. denied, 394 U.S. 1008 (1969). However, 5 months after the break-in, appellant stated that he had never been in the building nor knew where it was. Later, at trial, the defense offered evidence through a witness that prior to the burglary appellant and the witness had stopped at the station and appellant had entered the building. This testimony was obviously offered to suggest to the jury that appellant may have lost the package of cigarettes at that time. The jury was free to disbelieve this testimony.
In reviewing the evidence in the light most favorable to the Commonwealth, who was the verdict winner, Commonwealth v. Whiting, 409 Pa. 492 , 187 A.2d 563 (1963), the following is apparent: Appellant’s fingerprint was lifted from an article found in a suspicious area of a burglarized building; when confronted with the crime appellant replied that he had never been in the building nor knew where it was; but at trial the explanation was offered that the cigarette package was probably lost by appellant when he was in the gas station at a time prior to the crime.
In conclusion, there was, before the jury, not only evidence placing appellant at the scene of the crime but also evidence of an attempt by the appellant to divert suspicion from himself. Our Supreme Court has said that “prior false or contradictory or conflicting statements by the accused are admissible since the jury may infer therefrom that they were made with an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence, and hence are indicatory of guilt.” Commonwealth v. Gockley, 411 Pa. 437, 453 , 192 A.2d 693, 701 (1963) (footnote omitted).
Although the evidence against appellant was completely circumstantial, it did not have to be of such *487 quality as to exclude every other reasonable possibility except that of guilt. Commonwealth v. Carey, 368 Pa. 157 , 82 A.2d 240 (1951). In my opinion there was sufficient evidence to support appellant’s conviction.
Watkins, P. J., joins in this dissenting opinion.