Appeal from Sentence of the Court of Common Pleas of Berks County, Criminal Division, to No. 609 of 1974. No. 507 October Term, 1976
David R. Eshelman, Asst. Public Defender, Reading, for appellant.
Charles M. Guthrie, Jr., Asst. Dist. Atty., Reading, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Price, JJ., dissent.
[ 243 Pa. Super. Page 131]
Appellant contends that his conviction for burglary should be reversed for the following reasons: (1) there was insufficient evidence to support the verdict, (2) the verdict was against the weight of the evidence, (3) the trial court should have granted a mistrial because of a prejudicial statement advanced by a prosecution witness, (4) the trial court should have held a suppression hearing, (5) defense counsel was ineffective for failing to file a timely suppression motion, and (6) the sentence imposed was excessive.
In the early morning hours of January 21, 1974, Stanley's Radio and T.V. store in Reading, Berks County, was broken into and a television was stolen. On March 21, 1974, the Reading police, pursuant to a search warrant, searched the apartment of appellant and removed a television set of the same make and size as the one stolen. The model and serial numbers, however, had been obliterated
[ 243 Pa. Super. Page 132]
from the set found in appellant's apartment. Following the search, the police arrested appellant and interrogated him at the police station. Appellant admitted that he had broken into the store and had stolen the television set.
Appellant was indicted on charges of burglary*fn1 and receiving stolen property.*fn2 Trial was originally scheduled for September, 1974, but was continued until October, because of defense counsel's heavy work load. The trial date was thereafter postponed until November 19, 1974, because recent changes in the dictating equipment in defense counsel's office had prevented him from filing a suppression application. On November 8, 1974, counsel filed an application for suppression of evidence on the grounds that the search warrant was defective and the confession was involuntary. The trial judge refused to hear this suppression application because it was not filed within the time required by Rule 323, Pa.R.Crim.P. (Supp.1976). Appellant failed to appear for trial on November 19, 1974, and the trial was rescheduled for January 20, 1975. On that date, defense counsel asked for a continuance on the ground that the November 8, 1974 suppression application was still outstanding; the trial judge denied this motion. Four days later another continuance was granted for reasons unrelated to the issues presented by this case. Finally, on February 20 and 21, 1975, appellant was tried and convicted of burglary.*fn3 counsel filed post-trial motions for a new trial and arrest of judgment; these motions were denied. On October 29, 1975, the court sentenced appellant to a term of imprisonment of 3 1/2 years to 7 years, to be served consecutively upon completion of all prior sentences imposed
[ 243 Pa. Super. Page 133]
upon appellant for different burglaries, and to pay a $300 fine. Appellant retained new counsel who filed this appeal.
Appellant's first contention is that the evidence was insufficient to support a conviction for burglary. Appellant argues that the Commonwealth failed to prove that he was the person who committed the crime but for the fact that he gave a statement admitting the burglary. No other evidence implicating appellant was adduced at trial; the television set removed from his apartment could not be positively identified as the stolen set because the serial numbers were missing. At trial, appellant testified that the statement was coerced from him while he was ill and under sedation. Moreover, he alleged that the police made promises of probation and threatened to prosecute ...