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COMMONWEALTH v. FRANKS (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
FRANKS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1972, No. 207, in case of Commonwealth of Pennsylvania v. Leonard Franks.

COUNSEL

Peter B. Scuderi, for appellant.

James J. Wilson, 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 Van der Voort, J. Concurring Opinion by Jacobs, J. Dissenting Opinion by Price, J. Hoffman and Spaeth, JJ., join in this dissenting opinion.

Author: Van Der Voort

[ 235 Pa. Super. Page 328]

This is a direct appeal from a conviction in a trial before Judge Paul Ribner, sitting without a jury, and a consequent sentence of 11 1/2 to 24 months running concurrently for charges of burglary, larceny and receiving stolen goods.

On September 20, 1972, the residence of Ruth Sliwinski at 2297 Bryn Mawr Avenue was burglarized and one R.C.A. color T.V. set and a gray and white colored 2-tone black and white T.V. set together with a time or stop watch and some other jewelry were stolen from the residence. A silent burglar alarm alerted the police. The police came to the home and received information from the housekeeper as to the appearance of the T.V.s taken and within half an hour the police spotted a red Mercury convertible three blocks away from the site of the burglary going west on Wynnefield Avenue at a high rate of speed. The trunk of the automobile was open about a foot and a half and inside this trunk was a gray and white T.V. set. The police chased the car for approximately four blocks and upon reaching 52nd and

[ 235 Pa. Super. Page 329]

Lebanon Avenue, in conjunction with an emergency patrol wagon, stopped the vehicle. In the automobile were Alfonso Hubbard, Marvin Merritt and Leonard Franks, the appellant. The three were informed they were under investigation for burglary, the open trunk lid was pulled farther up and the two T.V.s answering the description given by the housekeeper were inside the trunk. The officers ordered the three men out of the car and while the officers were patting them down, at the foot of the three defendants was found the time or stop watch. The T.V. sets and the watch were taken back to the house and shown to Mrs. Sliwinski who identified them as her property. The officers were unable to determine which one of the three men dropped the watch.

The only issue raised by the appellant is the sufficiency of the evidence to sustain the conviction of burglary, larceny and receiving stolen goods. The possession of freshly stolen goods, together with the flight of the vehicle in which the goods were being carried and with the attempted concealment of the stolen watch were evidence sufficient to warrant and sustain a conviction of burglary, larceny and receiving stolen goods. See Commonwealth v. Breslin, 194 Pa Superior Ct. 83, 165 A.2d 415 (1960); Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972); Commonwealth v. Thurman, 167 Pa. Superior Ct. 642, 76 A.2d 483 (1950); Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974) and Commonwealth v. Whitman, 199 Pa. Superior Ct. 631, 186 A.2d 632 (1962). The possession of the freshly stolen goods within three blocks of the home that was burglarized and from which the articles were stolen and this possession being within less than an hour of the time of the burglary constitute adequate evidence of the burglary of the premises concerned.

The appellant complains that his co-defendant Hubbard who pled guilty and was called as a witness by the Commonwealth and who testified that he, Hubbard, and

[ 235 Pa. Super. Page 330]

    appellant bought the T.V. sets from some unidentified stranger in a supermarket parking lot should operate to free appellant from the burglary and larceny charges. There was evidence that some persons had trampled the grass and weeds from the rear of the burglarized residence down a hill across railroad tracks and into the supermarket parking lot in question. There was no evidence other than Hubbard's statement that the three co-defendants had not been the ones who trampled the grass and the weeds from the residence to the parking lot. It would have required a high degree of credulity for the trial judge to have believed that Hubbard and Franks, the appellant, bought the T.V.s from this unknown stranger but also stole the watch from the burglarized home.*fn1 It was the province of the trial judge to accept or reject any or all of Hubbard's as well as any other testimony. The evidence as a whole makes it clear that the three men discovered in the automobile with the T.V.s and the watch jointly participated in the burglarizing of Mrs. Sliwinski's home and the convictions were proper.

Affirmed.

Disposition

Judgment of sentence ...


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