Appeals, Nos. 7 and 8, April T., 1956, from judgments of Court of Oyer and Terminer and Quarter Sessions of Lawrence County, Sept. T., 1954, Nos. 4 and 4A, in case of Commonwealth of Pennsylvania v. Tony Bova, Fred Charles and Sam Sams.Judgment affirmed.
Vincent M. Casey, with him V. J. Rich, Michael Barletta and Margiotti & Casey, for appellant.
Perry L. Reeher, District Attorney, with him Gilbert E. Long, Assistant District Attorney for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 361]
This appeal is by Sam Sams, one of the defendants who was indicted and tried upon six counts of burglary. The jury rendered a verdict of guilty on each indictment.
On May 28, 1954 after midnight, defendant met with Tony Bova, Fred Charles and two girls at a tavern in New Castle. All five went by car to the home of Bova where he changed to work clothes. They then proceeded to the scene of the crime, arriving there at 2:00 a.m., and parked their car in front of the door of the building involved in the case. Both Sams and Bova came out of the car and walked around the building. Bova entered the building and Sams returned to the car. When the police arrived, they caught Bova lying on the floor. He told them that the door was opened and he merely went in to close it.
One of the girls, Elsie Somarivia, testified that, while they were riding around, she overheard a conversation about a paper, and Shirley West, the other girl, testified that she heard them say something about their hoping that it was the right combination. There are other additional facts pertinent to the question of admissibility which we shall discuss in the opinion.
There are several legal points which defendant raises in this appeal, some more important, some less.
Was it reversible error to receive the verdict of the jury without the presence of the defendant? This question
[ 180 Pa. Super. Page 362]
was raised and settled in the case of Commonwealth ex rel. Milewski v. Ashe, 363 Pa. 596, 70 A.2d 625, where former Chief Justice MAXEY ruled that where a defendant in a felony case is not in custody, his absence from the courtroom when the verdict is announced may ...