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COMMONWEALTH v. HRYNKOW (10/16/74)

decided: October 16, 1974.

COMMONWEALTH
v.
HRYNKOW, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1961, Nos. 327 to 331, inclusive, in case of Commonwealth of Pennsylvania v. Peter Hrynkow.

COUNSEL

Stephen R. Bolden, with him Fell, Spalding, Goff & Rubin, for appellant.

Deborah E. Glass, Assistant District Attorney, with her David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

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

Author: O'brien

[ 457 Pa. Page 531]

On December 11, 1960, James Kilroy and William Mitchell, employees of the Holmes Protection Agency, entered a building located at 622 Arch Street, Philadelphia, after being warned by a silent burglar alarm. Upon entering the premises Kilroy saw a man and heard a shot. He then dove for cover. A second shot was fired, hitting Kilroy in the leg, and he was thereafter shot in the temple. Kilroy then saw Mitchell shot to death. Appellant, Peter Hrynkow was subsequently arrested and charged with the murder of William Mitchell, assault with intent to kill for the shooting of James Kilroy, larceny, burglary and violation of the Uniform Firearms Act.

In 1961, appellant was declared incompetent to stand trial. He was confined at Farview State Hospital until July of 1972, when, after being found competent to stand trial, he was convicted, by a jury, of murder in the second degree, assault with intent to kill and burglary. Post-trial motions were denied, and appellant was sentenced to a term of ten to twenty years and was recommitted to Farview State Hospital for a period not to exceed twenty years. This appeal followed.

Appellant first argues that the evidence produced by the Commonwealth was insufficient to prove appellant's guilt beyond a reasonable doubt. The Commonwealth's case was based upon the identification testimony of James Kilroy and certain circumstantial evidence linking appellant to the crime. When Kilroy was

[ 457 Pa. Page 532]

    initially questioned by police regarding the identity of the assailant, Kilroy identified him as Negro, of short height and unshaven. Appellant, a tall Caucasian, who had been arrested and taken to the scene of the crime after being found, out of breath and crouching in a nearby doorway soon after the murder was committed, was promptly released, presumably because he didn't match the description given by Kilroy.

On December 19, 1960, some eight days after the incident, Kilroy, still recovering in the hospital, was again questioned by police. This time, he gave a description of his assailant as a big white man with bushy hair. Since that description fit appellant, he was re-arrested on December 20, 1960, and was taken to Kilroy's bedside, along with three other individuals who were similar in appearance. Kilroy positively identified appellant as his assailant.*fn1 On January 31, 1973, at appellant's trial, Kilroy specifically identified appellant as the man who had shot him and Mitchell.

After appellant had been identified on December 20, 1960, he was taken back to police headquarters. While he was there, a search was conducted of his residence and clothing was taken to the police station. From this clothing, appellant picked out the clothing which he had worn the night of the crime. In addition, police seized the coat which appellant was wearing, since the police recognized it as the coat he had worn when he had first been arrested.

This coat and this clothing were scientifically analyzed and at trial, the ...


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