Appeal from judgments of Court of Oyer and Terminer of Dauphin County, Sept. T., 1963, No. 37 O. & T., in case of Commonwealth of Pennsylvania v. Charles Pierson Ghaul et al.
Paul M. Chalfin, with him Louis Lipschitz, and Lipschitz & Chalfin, for appellants.
George W. Gekas, Assistant District Attorney, with him Martin H. Lock, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J. Hoffman, J., would reverse and grant a new trial.
[ 205 Pa. Super. Page 82]
Charles Pierson Ghaul and Owen Leroy Gallagher were jointly indicted by the grand jury in the Court of Oyer and Terminer of Dauphin County on Bill No. 37 September Term, 1963, charging burglary. They were represented by counsel, entered pleas of not guilty, and were tried before a jury with Judge Kreider presiding. At the conclusion of the Commonwealth's testimony, a motion for a directed verdict of acquittal was presented and refused. The defendants did not testify, and rested their case without offering any evidence. The motion for a directed verdict was then renewed and again refused. The jury returned a verdict of guilty as to both defendants. Motions for a new trial and in arrest of judgment were overruled, and sentences were imposed. This appeal followed.*fn1 The factual situation appears in the following excerpt from the opinion below:
"About 1:20 a.m. July 17, 1963 the police were summoned to the Heim Electric Company building at 19th and Greenwood Streets in Harrisburg. Their investigation disclosed the following: On a side street about a block away from the building a Pontiac 2-door sedan bearing a New Jersey license was parked with a key in the ignition and a set of keys in the opened trunk; this car was registered in the name of Jeanne Ghaul, wife of one of the Defendants; a red bag containing tools, including a cordless electric drill, was
[ 205 Pa. Super. Page 83]
lying near the car and other tools were strewn in the area; fresh pry marks were on a door on the south side of the building and a partly opened door on the east side. Within the building empty boxes were strewn about in disarray with scattered stuffing straw; fresh pry marks were on a metal cabinet in the basement; an empty metal box lying on the floor with checks strewn nearby, together with a broken chisel near the cabinet; a brown money bag containing $196.28, including some Canadian money, was found in the back yard of a dwelling about one and one-half blocks away and two pairs of brown gloves were discovered on the ground near the burglarized building.
"The evidence also showed that as the officer who was alone in the police car approached the scene of the burglary three or four men were observed by him fleeing from the area within a block of the Heim building. Subsequently, at about 5:20 a.m. on the same day the two Defendants, Ghaul and Gallagher, were apprehended by the Swatara Township Police about 5.2 miles away from the building on a road leading to the East Harrisburg entrance to the Pennsylvania Turnpike. There was evidence that Ghaul admitted he was the owner of the red tool bag and a yellow screwdriver found therein; that this screwdriver was the instrument which made pry marks on the striker plate (lock plate) of a door of the Heim building and that Ghaul admitted the broken chisel found on the floor near the metal cabinet belonged to him. There also was evidence that grease on the trousers of Ghaul and grease on lids of cans at the Heim building were similar and that soil on Gallagher's shoes and soil in the vicinity of the building were similar".
Appellants first contend that, since they offered no evidence, it was fundamental error for the trial judge to charge the jury concerning the defense of alibi. There was no specific exception to the charge in this
[ 205 Pa. Super. Page 84]
regard. Officer Mihalik had testified as to statements made by Ghaul and Gallagher in explanation of their presence at the scene of apprehension. Ghaul's story was that he and Gallagher met two girls in Philadelphia, that the four traveled to Harrisburg in two cars, the men in Ghaul's car and the girls in a separate car, that the Ghaul car was parked in Harrisburg and the group of four proceeded to Pittsburgh in the girls' car, that the girls left the men in a bar whereupon the men hitchhiked a ride back to Harrisburg in a truck. Gallagher also said that he and Ghaul came by truck from Pittsburgh, but ...