Appeal from order of Superior Court, April T., 1970, No. 184, affirming judgment of sentence of Court of Common Pleas of Beaver County, No. 477 of 1969, in case of Commonwealth of Pennsylvania v. Charles Joseph Horvath and Robert Allan Miller.
Wendell G. Freeland, with him David L. Lichtenstein, and Lichtenstein & Bartiromo, for appellant.
Robert C. Reed, District Attorney, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
This is an appeal from the order of the Superior Court affirming the judgment of sentence entered against appellant on a finding of guilty of malicious prowling and loitering at night, as defined by the Act of June 24, 1939, P. L. 872, § 418, added May 27, 1949, P. L. 1900, § 1, 18 P.S. § 4418. Commonwealth v. Horvath, 218 Pa. Superior Ct. 886, 279 A.2d 217 (1971).
The record discloses that state troopers, on the basis of a tip that a burglary was planned for the residence of Mr. and Mrs. Theodore Young, Jr., in Chippewa Township, began a stakeout of the premises at 12:30 a.m., July 28, 1968. Appellant and his co-defendant were seen getting out of a stopped car and running between two houses, a distance of 150 to 200 feet from the Young residence, and then going directly to the rear of the Young residence. After stopping at the rear window, one of the men went down the rear cellar steps of the residence. The two men were then seen standing at the rear of the residence for a few minutes, and then continuing to the front. The state trooper observing this, having lost sight of the two men, then went to his police car and radioed for assistance. As he returned to the scene, he came upon the two men coming out of the bushes twenty feet from where he had originally been positioned. The two men were placed under arrest.
Later, after the defendants had been taken to the state police barracks, a search in the area of the Young
residence near where the two men had been arrested disclosed a pry bar, a handy bar, and a pair of gloves.
The two men were originally charged with burglary and the possession of burglary tools. However, as one state trooper testified on cross-examination, when the crime laboratory could not identify the fingerprints on the tools as belonging to either defendant, and since the defendants had never been observed in actual possession of the tools, these charges were dropped and the defendants were charged only with malicious loitering.
Charles Miller, appellant's co-defendant, attempted to explain his presence and that of appellant on the Young property by testifying that while hitchhiking they had been picked up, robbed, and forced from the car near the Young premises.
In his appeal, appellant urges four reasons why his conviction should be reversed. Since two of his allegations of trial error have merit, we will not deal with his challenge of the constitutionality of what he alleges to be Pennsylvania's "over-broad" and "vague" malicious loitering statute.
During the Commonwealth's case in chief, a state trooper testified that "the defendants were originally charged with burglary because the burglary tools were found in the area where the defendants were -- when the defendants were placed under arrest." The defense immediately moved for a mistrial. ...