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COMMONWEALTH v. GAITO ET AL. (06/15/61)

June 15, 1961

COMMONWEALTH
v.
GAITO ET AL., APPELLANTS.



Appeals, Nos. 253 to 260, inclusive, April T., 1960, from judgments of Court of Oyer and Terminer and Quarter Sessions of Allegheny County, April T., 1959, Nos. 15, 46, 47, and 48, in case of Commonwealth of Pennsylvania v. Frank M. Gaito et al. Judgments of sentence affirmed.

COUNSEL

Frank M. Gaito, appellant, in propria persona.

Joseph Gaito, appellant, in propria persona.

William Claney Smith and Edward E. Fagan, Assistant District Attorneys, and Edward C. Boyle, District Attorney, for Commonwealth, appellee.

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

[ 195 Pa. Super. Page 357]

OPINION PER CURIAM

Defendants, Frank M. Gaito and Joseph Gaito, were indicted in Allegheny County on charges of (1) burglary, (2) assault with intent to kill, and (3) violation of the Firearms Act. They were tried before President Judge CLARK, of the Fortieth Judicial District, specially presiding, and a jury; and they were found guilty on all indictments. On the indictment for burglary, each defendant was sentenced to pay a fine of $500 and to serve a term of not less than ten years nor more than twenty years. On the indictment for assault with intent to kill, each defendant was sentenced to serve a term of not less than three and a half years nor more than seven years; sentences were to run consecutively. On the convictions under the Firearms Act, sentence was suspended on payment by defendants of costs of prosecutions. Motions for a new trial by both defendants and motion in arrest of judgment by Joseph Gaito were filed, argued before the court en banc, and denied. From the judgments of sentence, defendants have appealed to this Court.

The question raised in the court below on argument of defendants' motions for a new trial and the motion in arrest of judgment was the sufficiency of the evidence as to the identity of defendant Joseph Gaito. The following excerpts from the opinion of President Judge CLARK, for the court below, answer all questions which are properly raised in this Court:

"All of these cases were tried at the same time because of the fact that all of the charges have to do with the same set of circumstances.

"There had been a number of burglaries of homes in the vicinity of Dormont and Mt. Lebanon, in Allegheny County, Pennsylvania, the mode of operation of the burglars had been that they would evidently enter homes where there were no lights and where there was evidence that the parties were away from home. A

[ 195 Pa. Super. Page 358]

    young Police Officer by the name of Gregory Scorzafave, Jr., got an idea that if he would darken his home and hide himself in it that the burglars might attempt to burglarize his home. ... As a result on February 27, 1959, Mr. Scorzafave took his family to some of his relatives, and he turned out the lights in his own home and then sat in his home. During the time that he was there two men came to his front door and rang the bell. He did not answer the bell. Later he went to the cellar ... During the time he was in the cellar he noticed two men walk past his cellar window and look in the window. He noted at that time that the one man was considerably taller than the other. Later he went back up into the first floor of his home, and while there he heard someone climbing up the trellis work of his porch. After they climbed up the trellis onto the porch they smashed a window on the back door and then reached in to unhook the door, which in fact was not hooked. Two men entered his home. When they did the Police Officer turned on the electric light and immediately one of the men turned and shot the Policeman in the chest. The Policeman then shot at the men and the first time missed them; the second shot he hit one of the men whom he identified as Frank Gaito, one of the defendants. The Police Officer then tried to call on the telephone and passed into unconsciousness. Before the Police Officer regained consciousness, or before anyone else arrived, the two men who had entered his home both had disappeared. The Police Officer identified the ...


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