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COMMONWEALTH v. TOLBERT (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
TOLBERT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, Nos. 1762 to 1765, inclusive, in case of Commonwealth of Pennsylvania v. Leonard Tolbert.

COUNSEL

Joshua M. Briskin, for appellant.

Romaine Phillips, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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

[ 235 Pa. Super. Page 228]

Appellant and a co-defendant were arrested on January 11, 1974, and charged with burglary*fn1 and criminal conspiracy.*fn2 Appellant's motion to suppress the evidence was denied, and appellant was tried on June 11, 1974, convicted, and sentenced to 18 months probation. Appellant raises two arguments of alleged error, both of which are without merit.

The facts reveal the following: at approximately 7:10 p.m., on January 11, 1974, Officer Terrence Gumpper of the Philadelphia Police Department received a radio call informing him that a burglary was in progress at 5639 Litchfield Street. Officer Gumpper proceeded to the scene

[ 235 Pa. Super. Page 229]

    in a marked police car. Although Litchfield Street is a one way street, the officer came up the street against the traffic. He observed the appellant and the co-defendant in a pickup truck in the middle of the block, driving straight toward the police car. The officer testified that Litchfield Street is a narrow street through a residential area and that, considering the location, the pickup truck was moving at a high rate of speed, approximately 25-35 miles per hour, and accelerating. Officer Gumpper was forced to back out of Litchfield Street, and as the pickup truck turned north on 56th Street, he gave chase. Officer Gumpper noticed a number of plumbing fixtures in the rear of the truck.

The officer stopped the truck, and the appellant and the co-defendant were taken back to 5639 Litchfield Street, which is located in the middle of the block. In the rear of the truck, in plain view since it was an open body, the officer found one gas water heater, one kitchen sink and cabinet set with fixtures, one bathroom sink with fixtures, and one toilet and tank. Officer Gumpper testified that the lock attached to the door of the house was partially off, and the door jam had fresh "jimmy" marks on it. The officer then examined the premises and noticed that the sink and drainboard were missing from the kitchen, the sink and toilet had been removed from the bathroom, and that the hot water heater had been removed from the basement.

The Commonwealth also presented the testimony of John Allmond, a realty specialist employed by the Department of Housing and Urban Development (HUD). Mr. Allmond testified that the property in question was unoccupied and had been acquired by HUD on November 2, 1972. He further testified that he had personally visited the property shortly before Christmas of 1973 to see if all repairs had been made, and noted that at that time, all repairs had been completed. However, when he revisited the property on January 18, 1974, he noticed that the

[ 235 Pa. Super. Page 230]

    plumbing equipment and pipes had been torn out. The testimony indicated that no one had permission from HUD to remove ...


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