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COMMONWEALTH v. FINKELSTEIN ET AL. (12/17/59)

December 17, 1959

COMMONWEALTH
v.
FINKELSTEIN ET AL., APPELLANTS.



Appeals, Nos. 157 and 158, April T., 1959, from judgment of Courts of Oyer and Terminer and Quarter Sessions of Allegheny County, Sept. T., 1958, Nos. 166 and 676, in case of Commonwealth of Pennsylvania v. Phillip Finkelstein et al. Judgment affirmed.

COUNSEL

Barney Phillips and Albert Martin, with them Herbert Blumenfeld, for appellants.

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 191 Pa. Super. Page 330]

OPINION BY ERVIN, J.

The defendants, Isaac Morshun and Phillip Finkelstein, were tried and convicted of the charge of accessory before and after the fact to armed robbery. Finkelstein was also convicted on the charge of receiving stolen goods.

Following the dismissal of motions for a new trial and in arrest of judgment sentence was imposed. Both were sentenced to imprisonment on the first charge but sentence was suspended as to Finkelstein on the receiving of stolen goods charge. Both defendants appealed from the judgment of sentence.

Albert LaMolinare, Charles Balazs and Donald Halt hijacked and robbed a truckload of cigarettes belonging to W. J. Beitler Company on May 28, 1958 at about 9:15 a.m. at the intersection of Carson and Stanhope Streets in the City of Pittsburgh. The truck was then driven to a garage at 1202 Watson Avenue, where it was unloaded. Subsequently the cigarettes were moved to a garage next to 6307 St. Marie Street in the East Liberty section of the City of Pittsburgh. On June 3, 1958 Mrs. Elizabeth Lalle, a policewoman, observed

[ 191 Pa. Super. Page 331]

    men loading the cigarettes into an Avis Rental truck at the garage on St. Marie Street. She reported this and gave the license number of the truck. As a result of this information the police officers arrested a man by the name of Lapnicky, Donald Halt and Charles Balazs and subsequently discovered 186 cartons of cigarettes at the residence of John Lapnicky near Irwin, Pennsylvania. LaMolinare was subsequently arrested in Texas and brought back to Pittsburgh. At the trial LaMolinare, Halt and Balazs, who actually committed the armed robbery and who were awaiting sentence on pleas of guilty, appeared and testified as witnesses for the Commonwealth.

The principal question is whether there was sufficient evidence to sustain a conviction of accessory before or after the fact of armed robbery as to both defendants. It is contended by the Commonwealth and substantiated by the testimony of LaMolinare, that Finkelstein and Morshun had made arrangements with him prior to the robbery concerning the disposition of the cigarettes. On the other hand, it is the contention of the defendants that they did not act as accessories either before or after the fact of armed robbery and that they had no knowledge of the commission of the robbery except that which they subsequently gained from the newspapers.

We have carefully examined the testimony and are of the opinion that there was sufficient evidence to justify the conviction of the defendants as accessories before and after the fact of armed robbery. LaMolinare testified that on the day before the robbery he met Morshun in front of Bubble's Restaurant and that he told him that he had no plan to dispose of the cigarettes and that Morshun took him to Finkelstein across the street from the restaurant, ...


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