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COMMONWEALTH v. HARRIS (11/17/66)

decided: November 17, 1966.

COMMONWEALTH
v.
HARRIS, APPELLANT



Appeals from judgments of Court of Quarter Sessions of Philadelphia County, July T., 1964, Nos. 279 and 282, in case of Commonwealth of Pennsylvania v. Melvin Harris.

COUNSEL

Leonard Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

Alan J. Davis, Assistant District Attorney, with him Edwin D. Wolf, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., absent). Opinion by Wright, J. Dissenting Opinion by Hoffman, J.

Author: Wright

[ 209 Pa. Super. Page 29]

Melvin Harris was indicted in the Court of Quarter Sessions of Philadelphia County on Bills Nos. 279, 280, 281, and 282 July Sessions 1964. Bill No. 279 charged burglary at 1718 Sansom Street, larceny of personal property of Anna DeBellis, and receiving stolen goods. Bill No. 280 charged unlawful possession of burglary tools. Bill No. 281 charged burglary at 237 South 60th Street, larceny of personal property of Mary Grimes, and receiving stolen goods. Bill No. 282 charged burglary at 6027 Vine Street, larceny of personal property of George Price, and receiving stolen goods. Harris entered a plea of not guilty and was tried with counsel before Honorable Robert W. Trembath, specially presiding, and a jury. A demurrer was sustained on Bill No. 281. The jury returned verdicts of guilty on Bills Nos. 279, 280, and 282. A motion for a new trial was duly filed and overruled. Concurrent sentences of two to four years were imposed on Bills Nos. 279 and 282. Sentence was suspended on Bill No. 280. The Superior Court allowed appeals on Bills Nos. 279 and 282 in forma pauperis, and directed that counsel be appointed to argue the appeals. Following argument on September 13, 1965, a per curiam order was entered on October 15, 1965, affirming the judgments of sentence. See Commonwealth v. Harris, 206 Pa. Superior Ct. 743, 213 A.2d 390. On January 18, 1966, Harris belatedly requested allocatur. On July 26, 1966, the Supreme Court granted this request and remanded the record to the Superior Court.*fn1 On September 14, 1966, in compliance

[ 209 Pa. Super. Page 30]

    with the order of the Supreme Court, reargument was heard.

We will briefly summarize the relevant portions of the original trial record. Anna DeBellis testified that she was the proprietor of a boutique shop at 1718 Sansom Street, dealing in wigs. A burglary occurred at this shop during the night of May 29, 1964, and "there wasn't a thing left". Mrs. DeBellis identified Melvin Harris as a stranger who had been in her shop on the afternoon of May 13, 1964. He was carrying a tan brief case, Commonwealth Exhibit 3, and had paid particular attention to the lock on the front door through which the burglar entered. Mrs. DeBellis identified Commonwealth Exhibit 3, also three wigs marked Commonwealth Exhibits 1, 2, and 5. George Price testified that he was a manufacturer of wigs at 6027 Vine Street, that his shop had been entered at the rear during the night of May 27, 1964, and every wig taken. In particular he identified Commonwealth Exhibit 4, which was an unusual wig made for an entertainer whose head had been burned. Laura Chester testified that she was the proprietor of a beauty shop and sold wigs. She stated that the wigs in question had been brought to her shop on June 13, 1964 by Mrs. Lillie Wilson. Mrs. Lillie Wilson testified as to the receipt of wigs from Harris.

Detective Bernard Small testified that, on June 16, 1964, he arrested Harris at the residence of Mrs. Wilson. "He walked in, and I arrested him . . . I asked him where his car was parked. He indicated. I went to his car, and in his presence I searched the automobile". When the detective was asked about the result of the search, counsel for Harris moved to suppress the

[ 209 Pa. Super. Page 31]

    evidence on the ground that the search had been conducted without a warrant. The trial judge ultimately overruled this motion. Small then testified that Harris "voluntarily gave me his keys", and that he found the brief case, Commonwealth Exhibit 3, in the trunk of the car. The brief case contained two pairs of work gloves, two heavy duty screwdrivers, one small screwdriver, two knives with six-inch blades, and two flashlights. Harris told the detective that "the briefcase and the tools were his". The detective testified at length relative to the physical characteristics at the scenes of the burglaries. At 1718 Sansom Street the entrance was made by breaking the front door. Paint scrapings, Commonwealth Exhibit 7, were obtained from the door. At 6027 Vine Street a rear window had been forced. Paint samples, Commonwealth Exhibit 8, were obtained, also brick dust, Commonwealth Exhibit 9, from a chipped brick found below the window. The police laboratory technician gave fascinating and convincing testimony connecting the contents of the brief case with the respective burglaries.

Melvin Harris took the stand on his own behalf. He testified that he had bought Commonwealth Exhibits 1 and 2 in New York City, from a man named Hancock, and that he had given only those two wigs to Lillie Wilson. He stated that, when Lillie Wilson confronted him in the police station, she mentioned only those two wigs. He denied ownership of the tools, stating that he had borrowed the car from a friend. He denied having any knowledge of the burglaries. The detective testified in rebuttal that, at the confrontation in the police station, Mrs. Wilson stated in ...


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