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COMMONWEALTH v. MCFARLAND (05/23/73)

decided: May 23, 1973.

COMMONWEALTH
v.
MCFARLAND, APPELLANT. COMMONWEALTH V. TALLEY, APPELLANT



Appeal from order of Superior Court, March T., 1972, No. 110, affirming judgment of sentence of Court of Common Pleas of Dauphin County, No. 866 of 1970, in case of Commonwealth of Pennsylvania v. Clifford D. McFarland.

COUNSEL

Nelson M. Galloway, for appellants.

Marion E. MacIntyre, Deputy District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Pomeroy concurs in the result.

Author: Jones

[ 452 Pa. Page 436]

On April 6, 1969, the apartment of Antonio Sansone of Harrisburg was burglarized. Property stolen from the Sansone apartment was valued at approximately $263,000 and included two safes, cash, jewelry and securities. On March 12, 1970, eleven months and six days after the burglary, police recovered three negotiable treasury bonds from the possession of appellants, Clifford McFarland and Roger Talley.

On September 17, 1970, after the joint trial of appellants, a Dauphin County jury returned verdicts of guilty as to each appellant, on charges of burglary, larceny

[ 452 Pa. Page 437]

    and receiving stolen goods. On convictions of burglary appellants were each given ten to twenty years sentences to run concurrently with sentences of two and one-half to five years for receiving stolen goods. No sentence was imposed for either larceny conviction.

McFarland appealed to the Superior Court and the judgment of sentence was affirmed by a four-to-three decision. 222 Pa. Superior Ct. 90, 291 A.2d 903 (1972). We granted allocatur. Talley appealed nunc pro tunc to the Superior Court. Because of the identity of issues, we ordered the consolidation of these appeals prior to the Superior Court's disposition of the Talley appeal.

Appellants first allege procedural improprieties prior to trial and specifically question the lack of opportunity to challenge the grand jury array. The appellants were represented by counsel at every prosecutorial stage of this case, but did not raise these issues at trial or in post-trial motions. We will not pass upon the substantive merit of these questions because issues not raised in the court below are waived and cannot be raised for the first time on appeal to this Court. Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741 (1972); Commonwealth v. Henderson, 441 Pa. 255, 260, 272 A.2d 182, 185 (1971); Commonwealth v. James, 440 Pa. 205, 209, 269 A.2d 898, 900 (1970); Commonwealth v. Nash, 436 Pa. 519, 521, 261 A.2d 314, 315 (1970).

The remaining issues raised by the appellants challenge the sufficiency of the evidence supporting the convictions of burglary ...


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