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COMMONWEALTH v. MCCOY (03/23/67)

decided: March 23, 1967.

COMMONWEALTH
v.
MCCOY, APPELLANT



Appeals from judgment of Court of Quarter Sessions of Philadelphia County, July T., 1963, Nos. 1800 and 1801, in case of Commonwealth of Pennsylvania v. Edward McCoy.

COUNSEL

Abraham J. Brem Levy, for appellant.

Robert H. Finkel, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Spaulding

[ 209 Pa. Super. Page 401]

On July 19, 1963, shortly after 2:00 a.m., appellant and a companion were arrested for burglary of a telephone booth situated at 16th and Clearfield Streets, Philadelphia, Pennsylvania.

David Adams, who lived near the booth, testified he observed two men enter it and break the ceiling light. A third man walked back and forth in front of the booth. Adams telephoned the police and two officers were on the scene within forty five seconds. He testified that as the police drove up, the third man tapped on the booth door, said "make it", and ran.

One of the officers testified he saw appellant and another man inside the booth and a third standing on the sidewalk. They attempted to flee but the two who had been inside were immediately apprehended. The police found a screwdriver on a ledge in the booth and observed considerable damage to the phone instrument. A Bell Telephone Company representative testified he examined the telephone later the same day and found evidence of an attempt to pry open the instrument. On August 19, 1963, appellant was convicted of burglary and conspiracy.

Four questions are raised on appeal.

I

Appellant contends that a telephone booth is not a "building" within the meaning of the Act of June 24, 1939, P. L. 872, § 901, 18 P.S. 4901, which provides: "Whoever, at any time, wilfully and maliciously, enters any building, with intent to commit any felony therein, is guilty of burglary . . . ." According to appellant, the simultaneous enactment of § 4903 dealing with any "car, caboose, locomotive, motor vehicle, trailer, boat, aircraft, or any other vehicle" is an indication of legislative intent that § 4901 should apply only to structures

[ 209 Pa. Super. Page 402]

    commonly recognized as buildings by the general public. Section 4903 is limited to vehicles which, because of their non-stationary character, could not be considered buildings. It does not include ...


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