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COMMONWEALTH v. PROCOPIO (03/19/63)

March 19, 1963

COMMONWEALTH
v.
PROCOPIO, APPELLANT.



Appeal, No. 407, Oct. T., 1962, from judgment of Court of Quarter Sessions of Northumberland County, Sept. T., 1961, No. 164, in case of Commonwealth of Pennsylvania v. James J. Procopio, alias James Charles Procopio. Judgment affirmed.

COUNSEL

Myron M. Moskowitz, for appellant.

Sanford S. Marateck, Assistant District Attorney, with him ,H. F. Bonno, District Attorney, for Commonwealth, appellee.

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

Author: Wright

[ 200 Pa. Super. Page 227]

OPINION BY WRIGHT, J.

At November Sessions 1961, the Grand Jury inquiring in and for the County of Northumberland returned

[ 200 Pa. Super. Page 228]

    two bills of indictment against James J. Procopio, alias James Charles Procopio. Bill No. 164 charged burglary, and Bill No. 165 charged possession of burglary tools. These two bills were consolidated for trial before President Judge FORTNEY and a jury. After a two day trial, the jury returned a verdict of guilty on Bill No. 164, and a verdict of not guilty on Bill No. 165. Motions for a new trial and in arrest of judgment were refused, and sentence was imposed. This appeal followed. The factual situation appears in the following excerpt from the opinion below:

"The evidence produced by the Commonwealth in support of the burglary indictment is to the effect that on August 21, 1961 an officer of the Mount Carmel Borough Police Force, about 3:15 A.M., was making a routine check of business places on his beat. He came to the Moose building, the first floor of which is a combination Bar, Grille and Kitchen. He looked in through a window and from the reflection of a Neon light saw a man behind the Bar whom he recognized. This man immediately made a visible signal with his arm, and the officer then saw another figure run toward the rear of the building. The officer ran to an area-way which separates the Moose building from the property immediately north thereof and leads to the rear. When the officer entered this area-way he heard glass breaking, he continued toward the sound, ran up a flight of steps which led to a porch and caught the defendant crawling out a window, wearing gloves. The officer apprehended the defendant, forced him to return to the interior of the building, whereupon the defendant stated to the officer that the reason he went into the building was because he was hungry and wanted something to eat. The defendant then reenacted for the officer the manner in which he gained entrance to the building, and stated at the same time the door was open and he just walked in.

[ 200 Pa. Super. Page 229]

"The officer then summoned the Chief of Police and together they took the defendant to City Hall, where he was questioned for a few minutes and then committed to a cell. The officer and the Chief then returned to the scene and made an examination of the premises. The officer upon examination of the ground below the window out of which the defendant emerged, found within six inches or a foot from the window, two screw drivers and a heavy hammer. The Chief picked up from the floor behind the Bar, a hammer and a broken dial from the safe ...

"The Commonwealth produced testimony that further examination of the premises by the officers disclosed a window on the north side of the kitchen had a hole about the size of a quarter. The hole was located at the latch and the latch was loose. ...


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