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COMMONWEALTH v. BOWSER (06/13/68)

decided: June 13, 1968.

COMMONWEALTH
v.
BOWSER, APPELLANT



Appeals from judgment of Court of Oyer and Terminer and Quarter Sessions of Philadelphia County, Jan. T., 1967, Nos. 615, 616, and 618, in case of Commonwealth of Pennsylvania v. Charles Bowser.

COUNSEL

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

Samuel T. Swansen, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hannum, J. Dissenting Opinion by Hoffman, J.

Author: Hannum

[ 212 Pa. Super. Page 496]

On April 24, 1967, defendant-appellant, Charles Bowser, was brought to trial before the Honorable Theodore S. Gutowicz without a jury on charges of larceny, possession of burglary tools, malicious mischief, and conspiracy, as of bill numbers 615-618, January Sessions, 1967. Indicted as a co-defendant was one Rudolph Fleming, never brought to trial, owing to his demise. A demurrer was sustained to the malicious mischief bill, No. 617, and the defendant was found guilty of the remaining charges. Timely motions in arrest of judgment or for a new trial were made and denied. A sentence of not less than one nor more than five years was imposed on the larceny bill, along with concurrent sentences of one to three and one to two years imposed on the burglary tools and conspiracy bills, respectively. This appeal followed.

On December 5, 1966, at about 1:30 p.m., Officer Benham saw the defendant, with one Rudolph Fleming, in a 1957 Cadillac automobile, stopped in the middle of Wilder Street, approaching its intersection with 2nd Street in Philadelphia. Benham testified: "Like you would come up and stop for a stop sign; well, they just stopped there. The car was shut off and just stopped right in the middle of the street." The Cadillac was about 25 feet from a Bell Telephone Company public phone booth which was later found to have had its upper housing removed so as to expose the cash box.

Officer Benham testified that upon observing the vehicle he saw two men "hunched over" inside it and as he stopped his police car, the two defendants "sat upright." When Officer Benham asked the men for an owner's card and operator's license, neither was produced.

As he approached the vehicle, Officer Benham observed "several coins, of U. S. currency, on the front

[ 212 Pa. Super. Page 497]

    seat, in dimes, nickels and quarters; also, on the back seat was a rag and a can of Murray's Hair Pomade. On the floor, behind the front seat, was a crowbar, approximately 12 inches in length. On the front, on the hump of the front floor, was a red container containing several tools." On cross-examination the officer stated that when he first looked into the car he saw "several dimes and quarters on the floor, all over the seat." The red container included a four or five ounce glass, a screwdriver about 5 1/2 inches long, another screwdriver about 10 inches long, a third screwdriver about 8 1/2 inches long and a short-bladed linoleum knife.

Upon seeing the above items in the vehicle, the arresting officer, Benham, directed the defendants to drive the car to the police station for investigation, at which time Officer Benham followed it in his police car. Officer Benham searched the Cadillac at the police station.

The Cadillac's glove compartment yielded a second box of hair lanolin, two pairs of black gloves, a plastic tumbler with a broken glass inside and a long, bent spoon. The officer also found 70 dimes in the glove compartment and 32 dimes and 2 nickels under the front seat. Officer Benham noticed that the coins found on the seat and floor of the car were greasy.

Defendant Bowser was searched at the police station and was found to have 33 dimes, one nickel, four pennies and one dime-sized slug on his person. Fleming was ...


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