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COMMONWEALTH v. RUSSELL (07/15/71)

decided: July 15, 1971.

COMMONWEALTH
v.
RUSSELL, APPELLANT



Appeal from order of Superior Court, Oct. T., 1969, No. 901, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1968, No. 686, in case of Commonwealth of Pennsylvania v. William E. Russell.

COUNSEL

Harry J. Greenstein, for appellant.

Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones, Mr. Justice Eagen, Mr. Justice Pomeroy, and Mr. Justice Barbieri concur in the result. Mr. Chief Justice Bell dissents.

Author: O'brien

[ 444 Pa. Page 6]

Appellant pleaded not guilty to charges of burglary, larceny and receiving stolen goods. He waived a jury trial and was acquitted of burglary and larceny but convicted by Judge Margiotti of receiving stolen goods. His motions for new trial and in arrest of judgment were denied, and he was sentenced to a term of two to five years. An appeal to the Superior Court resulted in a per curiam affirmance of the judgment of sentence with Judge Hoffman filing a dissenting opinion. Thereafter, we granted allocatur.

The facts of the case, briefly stated, are as follows:

The victim of the crime left her home at 5:30 p.m. on May 11, 1968, for an overnight visit. At 11 p.m. on that date the victim's next-door neighbor observed an automobile in the common driveway serving his home and the victim's. He was suspicious of the circumstances and made a mental note of the New Jersey license plate number of the vehicle which he had observed. When the victim returned home the next afternoon, she found that one of the doors to her home had been forced and that a number of items of personal

[ 444 Pa. Page 7]

    property were missing, including an antique mantel clock.

Her neighbor informed the police of what had occurred the previous evening and gave them the license number. A check with the New Jersey police indicated that the license plate was registered to appellant at an address in Camden. On May 19, 1968, appellant was arrested on a charge unconnected with this case and was taken to a police station in Philadelphia. There a police officer noted the license plate number on his automobile and realized that it was on a "wanted" list in connection with the burglary of the home of the victim. On May 22, 1968, the police officer, in company with two detectives from New Jersey, went to the designated address in Camden. They had no search warrant, but they were admitted to the premises by appellant's sister-in-law, who was in fact the occupier of the premises in Camden. They there found what was later identified by the victim as the antique mantel clock, stolen from her home. The victim's neighbor, who had noted the license number, was unable to identify the occupant of the automobile, and in fact was unable to give any description of the occupant of the automobile which he had observed in the driveway on the night of the burglary.

The Commonwealth did not, however, prove that appellant was in possession of the clock at the time it was discovered. In fact, Marie Russell, appellant's sister-in-law, and the occupant of the Camden premises, told the Commonwealth's detective that the clock was hers and she had bought it several months earlier at a Goodwill store. She also told the detective that appellant had not lived at her Camden address since March, 1968, when her husband, appellant's brother, ...


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