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April 15, 1954



Walter H. Compton, H. Joseph Hepford, Harrisburg, for appellant.

Huette F. Dowling, Dist. Atty., Harrisburg, for appellee.

Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.

Author: Ervin

[ 175 Pa. Super. Page 332]

ERVIN, Judge.

The defendant, Joseph Agostino, was convicted and sentenced on a charge of occupying premises with books, apparatus or paraphernalia for the purpose of pool selling, in violation of the Act of June 24, 1939, P.L. 872, 18 P.S. ยง 4607. On November 7, 1952, at about 4:40 P.M., state, county and city police officers conducted a raid on 638 Harris Street, Harrisburg, Pennsylvania. The building contained three rooms on the first floor, three rooms and bath on the second floor and two rooms on the third floor. The officers entered the premises by the rear kitchen door, which was unlocked. The first floor was furnished but empty. The officers proceeded upstairs to the second floor, which was also furnished but unoccupied. They started up the stairs to the third floor when they saw the defendant, Joseph Agostino, walk toward the back of the house in the hallway and pick up a telephone. When the officers started up the stairs Agostino put down the receiver and ran into the back room and closed the door. The third floor consisted of two rooms about 10 by 12 feet in area, one in the front and one in the rear, connected by a closed hallway. One of the officers tried the door of the rear room into which Agostino had fled but not being able to open it, he kicked it in and grabbed Joe and took him to the front room. Another officer had gone directly to the front room wherein he found defendants Cerzullo and Matinchek seated at a table on which there were $1,044.23 in various denominations and 2297 numbers slips. Some of the money had already been wrapped in coin wrapping paper and some of it had been segregated in various denominations. The room also contained three adding machines, steel boxes, money folders, pencils, rubber bands, paper clips, money bags, and other paraphernalia used in the

[ 175 Pa. Super. Page 333]

    numbers game. On Joseph Agostino's person were found in his right pants' pocket $160 in twenty-dollar bills, $140 in five-dollar bills; in his right hip pocket were found a twenty-dollar bill, twelve ten-dollar bills and eleven five-dollar bills; in his jacket pocket, one hundred-dollar bill, one fifty-dollar bill, two ten-dollar bills, one five, one two and five ones, together with some slips containing numbers. One of the slips of paper found on Joseph Agostino's person was a piece of adding machine tape with the pencil notation 338 R and 908 S. Detectives who had qualified as experts testified that the winning stock number for November 6, the day before, was 908, and that the slips and other gambling articles found on the premises and on the defendant's person were paraphernalia used in the operation of the numbers game. They also testified to the entire manner of carrying on the game and stated that 638 Harris St. was what is known as a numbers bank.

Prior to November 7, 1952 638 Harris St. had been under surveillance by the State Police. They testified that they had watched the premises since October 28, 1952 and had seen the three defendants enter and leave the premises on every day from the 28th to the day of the raid, excepting Sunday and Election Day. Agostino was seen leaving the premises on October 28, 29, 30, 31 and November 1, 3, 5 and 6. On November 5 he was seen to park a black Cadillac at 7th and Harris Streets and walk up the alley and enter the rear of 638 Harris Street at 4:25 P.M. He did not leave the premises until 5:15. On November 6 he entered in the same manner at 4:17 P.M. and did not leave until 5:16 P.M. On the day of the raid he entered at 4:31 P.M. and the officers entered the premises at approximately 4:40 P.M. At the end of the Commonwealth's case the defendant demurred. After the demurrer was overruled, Anthony Matinchek changed his plea to

[ 175 Pa. Super. Page 334]

    guilty and then took the stand in behalf of the other two defendants, Adolf Cerzullo and Joseph Agostino. In his testimony he admitted that a numbers bank was being operated at 638 Harris Street on the day of the raid and that he had been operating it since October 26. He admitted renting the front room and stated that he owned all of the paraphernalia in that room and that the entire operation was his. He stated that Adolf Cerzullo was working for him. He also stated that he had borrowed some money from Joseph Agostino in September 1950; that Agostino would drop around to collect the payments on it; that he left the rear door open for Agostino; that Agostino usually stayed downstairs and called up to him but that he may have come up to the third floor once before the day of the raid. He also stated that Agostino was in the room on the day of the raid and that he was on his way out when the police came in.

The principal contention of the appellant is that the evidence was not sufficient to sustain the conviction under the circumstantial evidence rule. He states the rule as follows, citing Commonwealth v. Byers, 45 Pa. Super. 37, as his authority: 'When a crime charged is sought to be sustained wholly by circumstantial evidence, the hypothesis of guilt or delinquency should flow naturally from the facts and circumstances proved, and be consistent with them all. The evidence of facts and circumstances must be such as to exclude to a moral certainty, every hypothesis but that of guilt of the offense imputed, or in other words the facts and circumstances must not only all be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence.' This is not a correct ...

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