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COMMONWEALTH v. JOHNSON (09/16/60)

September 16, 1960

COMMONWEALTH
v.
JOHNSON, APPELLANT.



Appeal, No. 406, Oct. T., 1959, from judgment of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1959, No. 173, in case of Commonwealth of Pennsylvania v. Herman Johnson. Judgment affirmed.

COUNSEL

Fitzhugh Lee Styles, for appellant.

Domenick Vitullo, Assistant District Attorney, with him Victor H. Blanc, District Attorney, for Commonwealth, appellee.

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

Author: Gunther

[ 193 Pa. Super. Page 70]

OPINION BY GUNTHER, J.

This appeal is from the conviction and sentence imposed upon appellant, Herman Johnson, charging him

[ 193 Pa. Super. Page 71]

    with burglary and larceny at No. 173 February Sessions, 1959, in the City of Philadelphia. On December 17, 1959, we granted a new trial*fn1 for what we considered to be error on the charge of alibi. The Supreme Court*fn2 reversed and remanded the case back to us for disposition on the merits.

On January 24, 1959, at about 6:45 A.M., Kay's Sunoco Station located at 16th Street and Girard Avenue, City of Philadelphia, was burglarized. Entrance was obtained by breaking a window in the overhead garage door. Freddie Goldwire, an employe of the station and who was on his way to work, approached the station and saw the garage door up, and a Cadillac automobile, which had been left in the alley behind the garage the night before, was backed up to the door. Goldwire testified that he saw appellant, also an employee of the station, standing at the cash register putting money in his pocket. He spoke to the defendant and asked him what had happened. Defendant informed Goldwire that the station had been robbed. When Goldwire went to the telephone to call the owner, defendant pulled away in the Cadillac automobile which was recovered some three weeks later in a damaged condition.

The proprietor of the station corroborated Goldwire's testimony as to his custody of the Cadillac which had been left in the alley. He also testified as to the amount of money that was left in the cash register. He also testified that defendant saw him place $85.00 in the cash register the night before for the purpose of purchasing car parts the next morning. He stated that defendant was not due at work before eight o'clock in the morning and that he had no permission

[ 193 Pa. Super. Page 72]

    to enter the premises before that hour; that he had no key to the premises and that he had no ...


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