Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Philadelphia, Aug. T., 1972, No. 260, in case of Commonwealth of Pennsylvania v. David M. Garrett.
David Weinstein, with him Weinstein, Goss & Katzenstein, for appellant.
Louis Perez, Assistant District Attorney, with him David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Hoffman, J., did not participate in the consideration or decision of this case. Concurring and Dissenting Opinion by Spaeth, J. Van der Voort, J., joins in this opinion.
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Appellant, David Garrett, appeals from a conviction of burglary before the Court of Common Pleas of
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Philadelphia County, alleging that the Commonwealth did not meet its burden of proof as to the elements of the crime.*fn1
Viewing the evidence in a light most favorable to the Commonwealth as we must, Commonwealth v. Portalatin, 223 Pa. Superior Ct. 33, 297 A.2d 144 (1972), the evidence, as found by the lower court sitting without a jury, is as follows:
On June 25, 1972, appellant entered the record shop of James Sumner in order to obtain drugs. After entering the store, an argument ensued, and the appellant struck Sumner and removed money from Sumner's pocket. Sumner did not report this incident to the police; however, about two weeks later, appellant was arrested for fighting with Sumner in front of a state welfare office, and, upon arrest, Sumner informed the police that appellant had robbed him two weeks before.
Sumner, the Commonwealth's only witness at the preliminary hearing, died before trial, and his entire preliminary hearing testimony was incorporated at trial. The transcript of the earlier testimony indicated that appellant and another man entered the store, and while the second man held a gun to Sumner's head, appellant took $27.00 from the cash register. An argument then ensued, during which appellant hit Sumner in the face with his hand, took $130.00 from the cash register, and fled from the store with the second man.
The appellant, testifying in his own behalf, contends that on June 24, 1972, he purchased $35.00 worth of heroin at Sumner's store. Appellant, upon later discovering the heroin was actually quinine, telephoned Sumner, who informed appellant that he ...