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COMMONWEALTH v. NYDES (03/31/75)

decided: March 31, 1975.

COMMONWEALTH, APPELLANT,
v.
NYDES



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1972, No. 10324A, in case of Commonwealth of Pennsylvania v. Lynn Frank Nydes.

COUNSEL

Robert L. Eberhardt, Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.

Elmer S. Beatty, Jr., and Ecker and Associates, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J.

Author: Watkins

[ 232 Pa. Super. Page 483]

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Allegheny County, Criminal Division which sustained appellee's demurrer to the evidence.

The appellee, Lynn Frank Nydes, was charged with burglary, larceny and receiving stolen goods. The testimony may be briefly stated as follows: At approximately 2:45 A.M. on the morning of October 28, 1972, Carl Osterholm, owner of Carl's Corner Tavern located in Braddock, Pennsylvania, placed a telephone call to his tavern in an effort to determine whether or not all of his employees had left. There being no answer, Mr. Osterholm proceeded to the tavern and arrived there at approximately 3:15 A.M. As he approached the tavern, he noticed the defendant "darting out of the side door". The defendant was known to Mr. Osterholm, since he recently had been employed by him as a porter. Upon seeing the defendant exiting the side door, Mr. Osterholm testified that he pursued the defendant, who escaped by car. He had returned to the tavern to find that the side door had been kicked in, that there was a footprint on the door, and that the lock on the door had been broken. He testified that the side door had a bolt-type lock, and therefore, could not be locked from the outside. Upon examining

[ 232 Pa. Super. Page 484]

    the interior of the tavern, Mr. Osterholm discovered that all of the daily receipts, totaling $839.00, were missing from his two cash registers. Mr. Osterholm testified that among the missing currency was a number of coin rolls, which were always identified by the license number of the employee who picked these coin rolls up from the bank. Mr. Osterholm stated that 3:15 A.M. is long past his usual closing time, and that he had not given the appellee permission to remain past closing time. In addition, Mr. Osterholm noted that the defendant was well known to him, and that he had made positive identification of the appellee as the person that he saw leaving his tavern.

The Commonwealth next produced Edward Bujakowski, a police officer with the Braddock Police Department. Officer Bujakowski testified that the defendant had surrendered himself to the officer at approximately 3:30 A.M. on the morning of October 28, 1972. The officer stated that as the defendant was getting out of his car he (Officer Bujakowski) spotted three rolls of nickels with Mr. Osterholm's identification number on them. The officer stated that the rolls of coins which were discovered in the defendant's car were the same as those rolls which he had examined at the victim's bar.

Finally, the Commonwealth called Michael Chalfa, who was a bartender employed by Mr. Osterholm. He testified that the defendant was not working at Carl's Corner Tavern on the night of the burglary but that he was at the bar as a customer until closing time, which is 2:00 A.M. He also testified that the defendant had left the premises, and was gone when Mr. Chalfa locked up the bar at approximately 2:30 A.M.

The sole issue in this appeal is whether the evidence presented by the Commonwealth was sufficient to establish the elements of the crime. For the purpose of determining this, the defendant admits all facts which the ...


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