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COMMONWEALTH v. WHITNER (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
WHITNER, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, No. 535, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1969, No. 231, in case of Commonwealth of Pennsylvania v. Nathaniel Whitner.

COUNSEL

Thomas C. Carroll, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Louis A. Perez, Jr., Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, 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 Eagen concurs in the result. Concurring and Dissenting Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Pomeroy. Mr. Justice Jones joins in this opinion.

Author: O'brien

[ 444 Pa. Page 558]

On August 27, 1968, some time between 5:00 and 6:00 p.m., Mrs. Anna Berg returned to her third-floor apartment to discover that it had been burglarized and that a typewriter and some money were missing. From the position of a certain flower pot on her windowsill,

[ 444 Pa. Page 559]

    it appeared that the intruder had entered through the kitchen window, which was easily accessible from the roof of the adjoining two-story building.

At approximately 7:30 p.m., on the same evening, in response to a telephone call concerning a prowler, the police arrested appellant, Nathaniel Whitner, in a second-floor apartment next door to Mrs. Berg's residence. At the time of his arrest, appellant was lying on a bed holding a shotgun in both hands. His eyes were closed, his head was under a pillow and his shoes were off, but the arresting officer believed he was "faking sleep" because he was not observed to "rub the sleep out of his eyes" when the officer aroused him. About three feet from the bed, on top of a dresser, the officer found what was later identified as Mrs. Berg's typewriter. Adult female clothing was scattered about the room, which was in general disarray. The typewriter itself was "just stuck on top of after-shave lotion and everything else, it was sitting at a crooked angle."

Appellant gave a series of alternative explanations as to who rented the apartment and what he was doing there. The third and final version, that he had the permission of the tenant of the apartment, a woman named Earleen Robinson, appears to have been the version which the police finally believed, although they originally suspected that appellant had broken in.

The room itself was in a state of disorder. There were articles of women's clothing scattered about with dirty clothing stacked up in the corners. The only masculine article specifically identified was the after-shave lotion under the typewriter. The police were apparently satisfied that appellant was not the tenant of the apartment, but that he had the permission of the tenant to be there.

Based on this evidence alone, appellant was convicted on June 27, 1969, by a judge sitting without a jury, of burglary and ...


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