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WALDRON APPEAL (12/01/75)

decided: December 1, 1975.

WALDRON APPEAL


Appeal from order of Court of Common Pleas of Montgomery County, No. 340 of 1973, in the interest of: Joseph Waldron.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Concurring and Dissenting Opinion by Price, J. Jacobs and Van der Voort, JJ., join in this concurring and dissenting opinion.

Author: Cercone

[ 237 Pa. Super. Page 300]

On December 27, 1974, the appellant, Joseph Waldron, age 16, was adjudicated delinquent and committed to Anchor House, a group home in Lansdale, Pennsylvania, by the Montgomery County Court of Common Pleas.

The lower court's adjudication was predicated on appellant's alleged involvement in three separate criminal episodes: (1) participating in the burglary of the

[ 237 Pa. Super. Page 301]

    residence of Susan Lyle;*fn1 (2) the unauthorized use of Paul Kundrik's automobile; and, (3) the theft of gasoline from the automobile of Wade Tway. In addition, each of the foregoing charges were accompanied by a related charge of conspiracy. Appellant challenges the sufficiency of the evidence to sustain the charges of burglary and unauthorized use of an an automobile, and contends that his arrest for the theft of gasoline was illegal.

"In reviewing the sufficiency of the evidence to support the adjudication below, we recognize that the Due Process Clause of the United States Constitution requires proof 'beyond a reasonable doubt' at the adjudication stage when a juvenile is charged with an act which would constitute a crime if committed by an adult. In re: Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970); Terry Appeal, 438 Pa. 339, 347, 265 A.2d 350, 354 (1970); aff'd. 403 U.S. 528, 91 S. Ct. 1976 (1971). Additionally, we recognize that in reviewing the sufficiency of the evidence to support the adjudication of delinquency, just as in reviewing the sufficiency of evidence to sustain a conviction, though we review the entire record, we must view the evidence in the light most favorable to the Commonwealth. See, e.g., Commonwealth v. Lawrence, 428 Pa. 188, 189, 236 A.2d 768, 769 (1968)." Johnson Appeal, 445 Pa. 270, 272 (1971).

With the scope of our review so defined, we turn to appellant's three contentions.

I.

With respect to appellant's contention that the evidence was insufficient to sustain the charge of burglary and the conspiracy count related thereto, the record discloses the following. In the early afternoon of November

[ 237 Pa. Super. Page 3026]

, 1974, the appellant and two companions, John Bright and David Bell, were walking together in a park adjacent to a residential neighborhood. Bright and Bell were attempting to figure out a way of obtaining some money. When the boys walked by the home of Susan Lyle the appellant remarked that "other people got TV's from there." Upon hearing this Bright and Bell unlawfully entered the Lyle residence and stole a portable television set and transistor radio. While his companions were burglarizing the Lyle residence, the appellant waited outside some fifty yards from the house. When Bright and Bell came out appellant spoke to them for a few seconds and then left their company.

Appellant contended that he had nothing to do with the burglary; that he neither suggested nor encouraged the burglary; that he lent no assistance in gaining entrance to the house; that he was not serving as a lookout; that he waited for them to come out because he wanted to talk to them; that he did not share in the stolen property; and that he simply commented that the Lyle residence had been burglarized numerous times.

Although the Commonwealth's chief witness, David Bell, substantially corroborated appellant's testimony, the lower court refused to believe appellant's testimony. This was the lower court's prerogative. Commonwealth v. Harris, supra. The lower court justifiably found appellant's testimony "contradictory in part and totally unconvincing." At one point appellant stated that he was present when Bell and Bright were discussing how they could obtain some money. At another point, appellant testified he was not with the two boys when they were discussing their desire to obtain money. David Bell, however, testified appellant was present when this discussion took place.

[ 237 Pa. Super. Page 303]

Section 903 of our Crimes Code*fn2 provides in ...


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