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COMMONWEALTH v. WHALEN (04/16/59)

April 16, 1959

COMMONWEALTH
v.
WHALEN, APPELLANT (NO. 1).



Appeal, No. 416, Oct. T., 1958, from judgment of Court of Quarter Sessions of Philadelphia County, March T., 1957, No. 1, in case of Commonwealth v. Edward Whalen. Judgment affirmed.

COUNSEL

Paul N. Gardner, for appellant.

Juanita Kidd Stout, Assistant District Attorney, with her James McGirr Kelly, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. Defendant appealed from judgment of sentence for attempted burglary.

Author: Wright

[ 189 Pa. Super. Page 353]

OPINION BY WRIGHT, J.

Edward Whalen and Anthony Perpiglia were tried in Philadelphia County on two bills of indictment as follows: No. 1 March Sessions 1958 charging attempted burglary, and No. 222 June Sessions 1957 charging assault and battery with intent to murder. After a four day trial the jury returned a verdict of guilty as to both defendants. Motions for a new trial were filed and overruled. Perpiglia was sentenced on both bills for a total term of 13 1/2 to 27 years. As to Whalen, sentence was suspended on Bill No. 222 June Sessions 1957. On Bill No. 1 March Sessions 1958, Whalen was sentenced for a term of 7 1/2 to 20 years. From that judgment Whalen has appealed.

On May 16, 1957 about 1:30 a.m., a burglary was attempted through the roof of premises at 1305 Germantown Avenue, Philadelphia, owned and occupied by the Monarch Distributing Company. The south side of the Monarch building forms the rear boundary of properties on Thompson Street. Paul Stuhlman, who lives at the corner of Germantown Avenue and Thompson Street, heard unusual noises, saw two figures on the roof of the Monarch building, and called the police. Among other officers, James Armstrong arrived on the scene, saw two figures on the roof, and subsequently attempted to intercept a man running down Thompson Street. Armstrong was shot by this man, identified

[ 189 Pa. Super. Page 354]

    by several witnesses as Perpiglia. Other officers apprehended Perpiglia in flight a short distance from the scene. Specimens removed from his clothing and shoes were similar to the material on the roof of the Monarch building. The gun was found in a nearby vacant lot. Mrs. Irene Muller, who lives at 235 West Thompson Street, heard the shot, looked out and saw the figure of a man on the roof of the Monarch building. She then heard the noise of someone climbing down a rear sewer stack pipe located at the junction of the wall of her house with the wall of the Monarch building. This person bumped against the shutters and knocked over the rubbish can as he alighted. Mrs. Muller's rear yard is completely enclosed and accessible only by means of an alley which opens on Thompson Street. Entrance to this alley is through a wooden door having an ordinary Yale type lock and a barrel bolt which was in a locked position. When Mrs. Muller reached the street, she heard someone inside the alley trying to open the door. She signaled to Officers Masztak and Selby. The police threatened to shoot through the door if the person in the alley did not give himself up. Whalen then emerged from the alley. Sgt. Duthill testified concerning a hole in the roof of the Monarch building, and the discovery at that point of a brace and bit and a flashlight. Three drift pins*fn1 were found in the street near the spot at which Officer Armstrong was shot. When brought together, Whalen and Perpiglia at first denied knowing each other. Each testified in his own defense. Whalen's theory was as follows: He was on his way to a taproom when he saw a man running and heard a shot. He first darted into a "burned-out" building, heard a commotion,

[ 189 Pa. Super. Page 355]

    and came back out. He then ran into the alley at 235 West Thompson Street, the door of which was not locked, and slammed the bolt shut. In the darkness he accidently knocked over the rubbish can. The officers then arrived. Whalen denied that he had been on the roof, or that he had any connection with Perpiglia or with the attempted burglary.

The first contention of appellant's present counsel is as follows: "The evidence tending to connect the appellant with the attempted burglary of the Monarch Distributing Company was not sufficient to sustain the verdict". In support of this contention he cites Commonwealth v. Williams, 179 Pa. Superior Ct. 496, 118 A.2d 228, and Commonwealth v. Marino, 142 Pa. Superior Ct. 327, 16 A.2d 314, neither of which case is controlling in the instant situation. The corpus delicti was clearly established. A felonious intent may be inferred from the effort to break through the roof. See Commonwealth v. Stefanczyk, 77 Pa. Superior Ct. 27. While the evidence that Whalen was involved in the attempted burglary is circumstantial, the inference that he was one of the two figures seen on the Monarch building, as stated by President Judge ALESSANDRONI, "is well nigh conclusive". In a criminal prosecution, the evidence is sufficient to warrant a conviction where the circumstances proved are such as reasonably and naturally justify an inference of guilt, and ...


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