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COMMONWEALTH v. DELMARMOL ET AL. (11/11/65)

decided: November 11, 1965.

COMMONWEALTH
v.
DELMARMOL ET AL., APPELLANTS



Appeals from judgments of Court of Quarter Sessions of Montgomery County, June T., 1963, Nos. 341, 341-1, in case of Commonwealth of Pennsylvania v. Edward Joseph DelMarmol et al.

COUNSEL

Edward F. Kane, for appellants.

Richard A. Devlin, Assistant District Attorney, with him Richard S. Lowe, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J. Wright, J., would affirm on the opinion of the court below.

Author: Jacobs

[ 206 Pa. Super. Page 514]

This appeal is taken from the judgments of sentence imposed by the Court of Quarter Sessions of Montgomery County after both appellants were convicted by a jury of burglary and conspiracy to commit burglary. Appellant, Scanlon, was sentenced to pay a $10 fine and the costs of prosecution and to undergo imprisonment in a state institution for not less than four nor more than fifteen years. Appellant, DelMarmol, was sentenced to pay a $10 fine and the costs of prosecution and to undergo imprisonment in a state institution for not less than seven nor more than fifteen years.

The Commonwealth's case consisted of the following: On the afternoon of Friday, July 19, 1963, at about 4 p.m. Miss Mercy Essig was sitting on a sofa in her family's apartment at 403 Lancaster Avenue, Haverford, with her boy friend. The apartment is on the third floor of a three story apartment building. While so seated, Miss Essig heard a noise outside the front door. There was no knock. Suspicious of the noise, Miss Essig walked over to the door which was unlocked. She got to within a foot of the door, when it was opened from the outside. She saw DelMarmol, "sort of crouched", open the door and look up. When he saw her, he said "Oh", and closed the door rapidly. When she re-opened the door, DelMarmol and another person were running down the steps. She noticed that DelMarmol had something red in his hand when he was going down the steps. Miss Essig's boy friend testified that he looked out the window and saw the appellants leave, hugging close to the building. He pursued them and hailed a policeman. Scanlon came over to the

[ 206 Pa. Super. Page 515]

    policeman when requested to do so. He told the policeman that he had not been in the apartment house and was alone. DelMarmol went into a jewelry store. An employee of the jewelry store testified that DelMarmol came into the store, walked around, and then went down to the basement. He was observed standing and listening at the foot of the steps. When accosted by the employee, he asked for the men's room and when directed there, went in. The policeman apprehended DelMarmol as he came out of the men's room.

A search of Scanlon's person uncovered a magnifying glass which was red and a pen flashlight. DelMarmol had nothing unusual on his person. An employee of the jewelry store was permitted to testify, over objection, that he found a black and silver penknife on a counter in the china department the following Monday morning. He testified that DelMarmol would have passed this china section the previous Friday afternoon and that the store was locked over the weekend. A detective was permitted to testify, over objection, that he examined the apartment door three days after the alleged burglary and found that it apparently stuck when unlocked.

Appellants did not take the stand, but on cross-examination of a police detective it was stated that one of the appellants told the detective that he had come to the apartment house looking for his girl friend named Mary Walsh. Appellants' demurrer was refused as was their motion for binding instructions. The jury returned verdicts of guilty. Appellants' motions for a new trial and in arrest of judgment were refused.

The first question raised by the appellants is "Whether the Commonwealth produced sufficient evidence to establish that the appellants entered the apartment building with the intent to commit larceny?" After a careful review of the record, we ...


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