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COMMONWEALTH v. STANLEY (06/30/71)

decided: June 30, 1971.

COMMONWEALTH
v.
STANLEY, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, Nos. 2058 and 2059, in case of Commonwealth of Pennsylvania v. James Stanley.

COUNSEL

Stuart Schuman and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Louis A. Perez, Jr., and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy 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 Cercone, JJ. Dissenting Opinion by Hoffman, J. Montgomery and Spaulding, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 219 Pa. Super. Page 9]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant was convicted of possession of burglary tools and attempted burglary by a judge sitting without a jury. Post-trial motions were argued and denied. From judgment of sentence this appeal challenging the sufficiency of the evidence followed.

At trial a police officer testified that while on foot patrol he received information over police radio to proceed to a certain address. "On my way down, I was approximately 12, 13 stores away from this location, I observed the defendant coming out of the doorway of a store and walking north on Point Breeze Avenue, where I was walking south. There was a construction site, a pile of sand. I saw the defendant walk over and place something -- bend over the sand pile. He continued walking north on Point Breeze Avenue where I apprehended him. . . . It's approximately five stores away from [the doorway]. I apprehended him and patted him down. I brought him back to the scene where I observed in the doorway the screen protecting the window, pried away from the window. . . . I walked to the sand pile, where I observed a screwdriver in the area that the defendant bent over -- this screwdriver here."

[ 219 Pa. Super. Page 10]

Appellant testified on his own behalf that he had no connection with the store or screen and that he never was in ...


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