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COMMONWEALTH v. ATKINS (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
ATKINS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1973, No. 777, in case of Commonwealth of Pennsylvania v. James Atkins.

COUNSEL

Richard Heimann and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Glenn S. Gitomer, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First 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.

Author: Price

[ 232 Pa. Super. Page 208]

Appellant was convicted of burglary, following a non-jury trial on March 18, 1974, and was sentenced to two-and-one-half to five years imprisonment. Oral post-trial motions for a new trial and arrest of judgment were denied on April 15, 1974. In this appeal, appellant argues that the evidence presented was insufficient to establish that he was the perpetrator of the offense, and to establish entry with an intent to commit the crime of theft.

The pertinent facts may be summarized as follows: The complainant, Jerry Salkowe, a resident of a fraternity house located at 1106 Spruce Street, Philadelphia, testified that on November 11, 1973, at about 2:00 a.m., he was awakened by a noise. He saw his door slightly open and a hand reaching in, in an apparent attempt to unhook the chain lock. Mr. Salkowe went into the hall to investigate and noticed the door to an adjoining room closing. He also heard noises, as if closets were opening and closing, emanating from this room. Together with other occupants of the house, Mr. Salkowe knocked on the door and heard a voice saying, "I am coming out." He immediately returned to his room, while the other occupants walked to the third floor landing. Mr. Salkowe then heard footsteps and the front door slam. Because his room faces the front of the building, he was able to observe the defendant standing on the sidewalk and walking away from the house. Later, when Mr. Salkowe went into the room where he had heard the voice, he saw clothes and a radio stuffed into a suitcase.

David Thayer, also a resident of the fraternity house, testified that he was with Mr. Salkowe when the intruder in the room had spoken. When Mr. Salkowe retreated

[ 232 Pa. Super. Page 209]

    to his room, Mr. Thayer had walked to the third floor landing. From that vantage point he was able to see the person walking down from the second floor to the first floor. Although he was looking down at the back of this person, Mr. Thayer was able to observe the clothing the intruder was wearing.

The description of the clothing given by both witnesses matched. Mr. Salkowe testified that the intruder wore a tan leather coat, brown cap, carried an umbrella, was black and had a beard. Mr. Thayer described a tan coat, brownish hat or cap, and also noted that the intruder carried an umbrella. They both testified that after the intruder left, the police were called. However, before the police arrived, there was a knock on the front door, and upon opening, both Messrs. Thayer and Salkowe saw the appellant standing there. The appellant stated that he was looking for a certain family and asked whether this house was the proper address. They informed him that it was not and he left. Both witnesses noted that the clothing worn by the person knocking on the door and the umbrella he was carrying were the same as that of the person they both saw leaving earlier.

Police Officer Varley testified that shortly thereafter he arrived and was informed of the facts and given a description of the intruder. Approximately thirty minutes later, Officer Varley observed the appellant about five blocks from the fraternity house. Because the coat, cap and umbrella fit the description given to him, he stopped the appellant for identification. When the appellant did not produce any, the officer reached into his patrol car to radio for a wagon to take the appellant back to the fraternity house. At that moment, the appellant bolted ...


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