Appeal from order of Superior Court, Oct. T., 1972, No. 118, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1971, No. 141, in case of Commonwealth of Pennsylvania v. Charles Roscioli.
Andrea Levin, Assistant Defender, with her Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Louis A. Perez, Jr., Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Pomeroy and Mr. Justice Nix dissent.
This is an appeal from a per curiam order of the Superior Court, affirming the judgment of sentence imposed upon appellant, Charles Roscioli, following his conviction of burglary by a judge sitting without a jury. The sole question presented is whether the Commonwealth produced sufficient evidence to prove guilt beyond a reasonable doubt.
The record read in the light most favorable to the Commonwealth discloses the following pertinent facts:
On May 8, 1971, at approximately 1:45 a.m., police officers, Frederick Lederer and Robert Powers, received a radio call concerning a burglary in progress at a restaurant located at Second and Allegheny Streets in Philadelphia. As they approached that location, they saw appellant with Duane Kelly, a juvenile, standing outside a telephone booth alongside the restaurant. A female juvenile, later identified as Mickey Shelley, was inside the booth; although she was not using the phone at the time, the door to the booth was open. When appellant and his companions saw the police car, they started to run but were stopped by the police officers about six feet from the phone booth.
Officer Lederer then went to check the front of the restaurant. He placed his hand on the door and it immediately opened. Inside he observed two men, William Vidra and William Wolf, who were taken into custody.
The officers also testified that the pane of a window in the restaurant, located about a foot from the edge of the phone booth, was missing. The window pane was later found intact leaning against the back wall in the rear of the restaurant. Officer Lederer testified, "There was no breaking of the glass, so, evidently, someone took the putty out . . . ."
Meanwhile, Officer Powers detained the three people who were at the telephone booth, and upon searching appellant found a ten-inch knife in his right front pocket.
Louis Joseph, the owner of the luncheonette, testified that when he had left the store at about 3:00 p.m. on May 7th, everything had been secure. When he came back the next day after the police notified him of the burglary, he found three plastic bags near the door loaded with meat, cigars and candy worth four or five hundred dollars. These items had been removed from various parts of the store and placed in the bags; the plastic bags had ...