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COMMONWEALTH v. BELL (04/16/59)

April 16, 1959

COMMONWEALTH
v.
BELL, APPELLANT.



Appeal, No. 26, Feb. T., 1959, from judgment of Court of Oyer and Terminer and General Jail Delivery of Luzerne County, Nov. T., 1957, No. 95, in case of Commonwealth v. Edwin Grier Bell. Judgment affirmed.

COUNSEL

Frank Townend, for appellant.

Charles D. Lemmond, Jr., Assistant District Attorney, with him Albert H. Aston, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 189 Pa. Super. Page 390]

OPINION BY HIRT, J.

The defendant was convicted of burglary. He had demurred to the evidence, and after verdict he filed a

[ 189 Pa. Super. Page 391]

    motion in arrest of judgment. The motion was denied by the court en banc and the defendant was sentenced. In this appeal he contends that the evidence against him was insufficient to sustain his conviction of the crime. Although the testimony was wholly circumstantial, the judgment of sentence must be affirmed.

A small grocery operated by one Frank Zearfoss at Mountaintop in Luzerne County was entered on the night of Friday, October 4, or early Saturday, October 5, 1957, and a large quantity of food products was removed from the premises. A pane of glass in the front door had been broken and access to the store had been gained by turning the latch on the inside of the door. There was evidence that the store had been ransacked and merchandise was scattered about. Behind and along a meat counter, six or seven dozen of broken eggs were on the floor where they had fallen. There was a print of a heel of a shoe in this egg material on the floor and photographs of the imprint were made by the State police. The witness Devine testified that, shortly before 1 a.m. on the night in question, as he passed the Zearfoss's market he noted an old Chrysler fourdoor sedan parked without lights directly in front of the building, with the left front door swung open. The witness Brandt testified that on his way home in Mountaintop shortly after 1 a.m. he saw a "dark four-door sedan" drive off the road and over three lawns, including his own front yard. He also identified the automobile as a ten or twelve year old Chrysler car. Because of the erratic course of the car he followed it, blowing his horn meanwhile, but the car did not stop. The driver was alone in the car and the witness could not identify him but he noted the license number which proved to be that of the defendant's automobile. The following morning a State police officer saw the defendant at his home. The defendant refused to talk

[ 189 Pa. Super. Page 392]

    but at the officer's request he did produce the shoes which he had worn the night before. On the arch of the sole of the right shoe a foreign substance covered a spot which a chemical analysis identified as egg. The officer also inspected the defendant's car and found a piece of egg shell and a yellow substance (which was also found by the chemist to be egg) on the floor of the car between the clutch pedal and the brake. Fourteen dozens of eggs had been taken from the store and in the luggage compartment of defendant's car a block of wood and a burlap bag with egg stains upon them were found by the officer.

The photographs of the heel imprint on the floor of the store, when admitted in evidence, were compared with the heel of defendant's right shoe by a State police officer who testified that the heel marks were made by the defendant's shoe. The defendant, who heard this ...


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