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COMMONWEALTH v. GABELLI (03/24/55)

March 24, 1955

COMMONWEALTH
v.
GABELLI, APPELLANT.



Appeals, Nos. 232 and 233, April T., 1954, from judgments of Court of Quarter Sessions of Westmoreland County, May T., 1954, No. 134, in cases of Commonwealth of Pennsylvania v. Louis Gabelli; and Same v. Wilbert Smeltzer. Judgments affirmed.

COUNSEL

A. C. Scales, with him Scales & Shaw, for appellants.

Joseph M. Loughran, Assistant District Attorney, with him L. Alexander Sculco, District Attorney, and John K. Best, Assistant District Attorney, for appellee.

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

Author: Ross

[ 177 Pa. Super. Page 610]

OPINION BY ROSS, J.,

Appellants Louis Gabelli and Wilbert Smeltzer, with George Vokoder and Harold L. Willingham, were indicted in the Court of Quarter Sessions of Westmoreland County on counts of larceny and receiving stolen goods. Vokoder and Willingham entered pleas of guilty. Appellants pleaded not guilty and after trial, on May 21, 1954, the jury found them guilty as charged. From the refusal of the court en banc of their motions in arrest of judgment and for a new trial they appealed to this Court.

The larceny, which occurred on the night of December 21, 1953, was of a new GMC one-ton, pickup truck belonging to John A. Tylavsky, a truck and coach dealer in Greensburg.

At the trial Vokoder and Willingham were witnesses for the Commonwealth. Vokoder testified that in response to a telephone call at his home to the effect that Gabelli wanted to see him, he went outside and waited until Gabelli drove up in his automobile with Smeltzer and Willingham as passengers. Vokoder then entered the car and Gabelli informed him that they were on their way to Greensburg to steal a truck. Questioned as to whether Smeltzer heard the conversation relative to stealing a truck, he answered, "I guess so." Through subsequent questioning it was developed that Smeltzer was seated beside the driver

[ 177 Pa. Super. Page 611]

Gabelli, while Vokoder and Willingham shared the rear seat. Upon arrival in Greensburg, at about 8:30 or 9 p.m., according to Vokoder, Smeltzer left the group to go to a restaurant while the others proceeded to the lot adjoining the General Motors building, where Gabelli selected the pickup truck, directed him (Vokoder) and Willingham to get in, turned over the keys and directed Willingham (with Vokoder at his side) to drive to Blacklick, Indiana County, where he informed them someone would purchase the truck. Gabelli in the meantime picked up Smeltzer at the restaurant and the two followed the truck in Gabelli's car. When the gasoline supply in the truck became exhausted, Gabelli stopped the car and, leaving the truck unattended, the four men went to a nearby service station. Resuming, they arrived in Blacklick at approximately 11 or 11:30 p.m., and Gabelli and Smeltzer took the truck to the home of a man the witness knew only as "The Big Boss" (later identified as Charles Bernini). A half hour later Gabelli and Smeltzer returned, Vokoder at Gabelli's direction drove the car, following Gabelli and Smeltzer in the truck, until they came to an old coal shaft, where Gabelli parked the truck and he and Smeltzer came over to the car. Gabelli then gave Willingham and Vokoder $50 apiece and left the truck parked in the coal shaft. Sometime during the episode of running out of gas, Smeltzer confided to the witness and Willingham that he "didn't want to have no part" of Gabelli. However, this was after the larceny had taken place. Smeltzer, nevertheless, accompanied the others. The witness stated that he arrived home about 1 or 1:30 a.m.

Willingham in many respects corroborated Vokoder's testimony. He testified that Gabelli came to Smeltzer's home, ...


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