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March 18, 1952



Fred G. Schultz, Pro se.

Damian McLaughlin, Dist. Atty., Herbert J. Johnson, Jr., Erie, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Rhodes

[ 170 Pa. Super. Page 507]

RHODES, President Judge.

Edward J. Milewski, Fred G. Schultz, and Earl F. Palmer were charged with burglary, larceny, and receiving stolen goods. Milewski entered a plea of guilty, and Schultz and Palmer, after having been indicted by a grand jury, were tried in the Court of Oyer and Terminer of Erie County and found guilty on November 17, 1950. At the trial Schultz was represented by counsel of his own choosing, and Palmer was represented by counsel appointed by the court. Schultz was sentenced on November 20, 1950, to the Western State Penitentiary for a term of not less than three and one-half years nor more than seven years to be computed from the date of commitment of October 2, 1950. Palmer was sentenced also but he has not appealed. This appeal is by Schultz from the judgment and sentence imposed by the court below.

Although appellant was represented by counsel at his trial, he has filed a brief in his own behalf on this appeal. He presents twenty reasons for reversal of his conviction. Our discussion will be limited to a few matters, although we have considered his entire brief. Most of the alleged defects in his trial are immaterial and have no support in the record, and do not merit further attention. The only exceptions taken during the trial to which appellant's argument might apply relate to the admission in evidence of a statement made by Milewski and read to appellant; to the refusal of a motion to withdraw a juror, made at the conclusion of the trial, and to continue the case by reason of an alleged prejudicial report of the proceedings in a local newspaper; and to the charge of the court to which only a general exception was taken.

[ 170 Pa. Super. Page 508]

Appellant's first complaint is that the trial judge erred in refusing to sustain his demurrer to the evidence presented by the Commonwealth at the close of the Commonwealth's case. There was no such demurrer to the evidence although counsel for both defendants moved for a directed verdict at the conclusion of the defense. The trial judge properly submitted the case to the jury and the evidence adequately sustains the verdict. Moreover, we find no trial error that would justify a reversal of the conviction.

The evidence discloses that on August 2, 1950, two young men motored to the Peninsula State Park which is outside the City of Erie. They parked their automobile on a road near the area designated as section 5 of the park. They put on bathing suits, locked their car, and walked to a nearby bathing beach. When they returned less than an hour later (about 1 p. m.) they discovered that the car had been forcibly entered, and that two wrist watches, two rings, and a billfold, as well as loose change in their trouser pockets, had been taken. Police had previously arrived at the scene to investigate the pilfering of another car which had been parked nearby. One of the rings, a diamond ring, was later found in the possession of appellant's father to whom it was admittedly delivered by Milewski, Palmer, and appellant on August 9, 1950. Subsequently Milewski made a statement or signed confession implicating appellant and Palmer. Palmer had been acquainted with appellant for fifteen years, and both had known Milewski for a long time. At the trial Milewski testified for the Commonwealth and confirmed the statements in his confession. He testified that appellant and Palmer arrived at his home in Erie about 11 a. m. on August 2d; that appellant drove them to the park where they began 'spotting cars'; that upon discovering some unattended cars near section 5 of the

[ 170 Pa. Super. Page 509]

    park appellant stopped his car; that he and appellant served as lookouts while Palmer crossed the road to the place where such cars were parked; that about five minutes later Palmer returned with a bent screw driver, a diamond ring, which was later sold to appellant's father, two wrist watches and one or two billfolds; that thereupon they left the park. Milewski further testified that on their way out of the park an unidentified person signaled for them to stop, but they did not comply; that before reaching the park police barracks appellant stopped his car and the loot which Palmer had was given to Milewski who walked past the barracks and then rejoined Palmer and appellant in the latter's car; that they then divided the money, he receiving approximately $20; that on the same evening, at appellant's suggestion, that went to the home of appellant's father with the intention of selling the diamond ring to him; that, upon finding no one at home, he (Milewski) was given the ring in order that he might dispose of it; that he failed to find a buyer; and that, on August 9th, he, Palmer, and appellant went again to the home of appellant's father; that appellant received $200 from his father for the ring; and that from the proceeds he received $60 or $65.

The jury refused to believe the testimony of the defense which attempted to shift the responsibility to Milewski for the crimes which were undeniably committed. Appellant and Palmer both testified in their own behalf, Palmer, by agreement, having been taken from the courtroom during appellant's testimony. Both said that from the date of their arrest they had not conversed with each other; and the argument was made that they therefore had no opportunity to fabricate a defense. The testimony of ...

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