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August 30, 1954



E. O. Golden, Edward J. Steiner, Kittanning, Armand R. Cingolani, Butler, for appellant.

Clark H. Painter, Dist. Atty., Butler, Charles J. Margiotti, Sp. Prosecutor, v. j. Rich, Asst. Prosecutor, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Woodside and Ervin, JJ.

Author: Rhodes

[ 176 Pa. Super. Page 222]

RHODES, President Judge.

Appellant, Fred Burdell, has appealed from conviction and sentence on bill of indictment charging armed robbery, at No. 2, June Term, 1952, in the Court of Oyer and Terminer of Butler County. Appellant was sentenced to undergo imprisonment in the Western State Penitentiary for a term of not less than four years nor more than eight years, to be sent, in the first instance, to the Western Correctional Diagnostic and Classification Center, at Pittsburgh. Appellant was also indicted for aggravated assault and battery, at No. 23, June Term, 1952, in the Court of Quarter Sessions of Butler County. He was tried on both bills before the same jury which rendered verdicts of guilty. Sentence on bill No. 23 was suspended, but appellant has nevertheless appealed. In the absence of a judgment this conviction is not necessarily reviewable. Com. v. Kimmel, 172 Pa. Super. 76, 81, 92 A.2d 247.

Motions for new trial were refused by President Judge Graff of the Thirty-third Judicial District, specially presiding, who was the trial judge.

The court below fully considered the many reasons advanced for a new trial. Appellant's several contentions that the court erred in refusing his motions for a new trial will be considered as embraced in the statement of questions involved.

The Commonwealth established that on the afternoon of March 14, 1952, at approximately two o'clock, the home of Craig Saul, in the City of Butler, was entered and over $100,000 feloniously taken. Entry was gained to the house under the pretext of delivering a box to Mr. Saul. Two men who were carrying the box entered first; they were armed. Mrs. Saul was forced into a chair and then a third man came in the house. The latter went through all the rooms of the house,

[ 176 Pa. Super. Page 223]

    including the cellar. In the meantime, one of the men removed the telephone and Mrs. Saul was taken to the upstairs hall where she was required to sit on the stairs with her feet on the landing. She was held there throughout the robbery by the first man who had entered the house, with the help at times of the second man who had entered. Mrs. Saul suffered considerable injury at the hands of these armed men. Mrs. Saul was thus restrained for about a quarter of an hour. During this time a safe, which was located in the dining room on the first floor, was opened and approximately $100,000 in cash and bonds belonging to the Sauls was taken therefrom. Then the three men left the house. Mrs. Saul followed and observed them getting into the back seat of a large gray car with dark cloth covering the glass on the inside.

Appellant was identified by Mrs. Saul as being the person who first entered the house, and who was with her during the entire time she was held in custody by the perpetrators of the robbery. Mrs. Saul partially identified the other participants.

(1) A primary contention of appellant is that the trial judge erred in admitting evidence of a crime committed in Allegheny County two days before the entry of the Saul home. Evidence of the extortion of $2,600 from Craig Saul by appellant in Allegheny County was admitted for the purpose of showing a course of conduct or plan or scheme on the part of appellant and others to feloniously take from Craig Saul his personal property, as well as to establish the identity of appellant. Craig Saul testified that on the morning of March 12, 1952, he went to Pittsburgh with three individuals, Jack Vergili, Willie Mendocini, and Sam Fratta. They registered at the Roosevelt Hotel. A party was arranged by Mendocini. The group remained at the hotel during that day; and at ten o'clock in the

[ 176 Pa. Super. Page 224]

    evening Saul wanted to go home and called his brother, who came to the hotel and directed the other three men to take him the his home in Butler. On the pretext of taking Saul to Butler the group drove toward Rankin, Allegheny County, where appellant, in his police uniform, stopped Saul's Cadillac automobile, which was being operated by Mendocini, and accused them of driving through a stop sign and of being engaged in the numbers business. Appellant indicated that he would confiscate Saul's automobile unless he was 'fixed.' ...

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