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COMMONWEALTH PENNSYLVANIA v. JOHN SHANNON (12/15/76)

decided: December 15, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN SHANNON, JR., APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lehigh County, at Nos. 510/512 of 1974. No. 896 October Term, 1976.

COUNSEL

William H. Platt, Public Defender, Allentown, for appellant.

Lynn H. Cole, Asst. Dist. Atty., and George J. Joseph, Dist. Atty., Allentown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., dissent for the reasons set forth in Commonwealth v. Carter, Author: Per Curiam

[ 244 Pa. Super. Page 324]

Appellant was charged with conspiracy to commit burglary, attempt to commit burglary on January 24, 1973 and other offenses. He was found guilty of conspiracy to commit criminal trespass and attempt to commit criminal trespass as well as other offenses which will be discussed later in this opinion.

The appellant rang the doorbell of a home while standing at the kitchen door. This occurred at about noon on January 24, 1974. The lady of the house heard the bell but did not open the door although she observed the appellant through a window. The appellant then walked away from the house and shortly thereafter returned and rang the doorbell again. The doorbell again went unanswered, but the occupant of the house observed one of two locks on the kitchen door moving and noticed that the kitchen door was opened about a quarter of an inch and only the safety lock prevented the door from being opened all the way. Appellant was again observed at the kitchen door. The occupant knocked at the kitchen window and the appellant "froze" and dropped a metallic object. The homeowner then telephoned the police and when she again looked out the window the appellant and metal object were no longer there.

When the police arrived, the woman described the appellant and a description was given over the police radio. Other police joined in the search and the appellant's description was given to some construction workers engaged in building townhouses in the vicinity. Shortly thereafter, some of the workmen observed the appellant and another man. The appellant was going from door to door in the townhouses looking in the windows and attempting to open the doors. The other man stood between the buildings while the appellant tried the doors and then moved to the next building when the appellant tried to open the doors on that building. The police were notified and when they arrived at the scene, the appellant

[ 244 Pa. Super. Page 325]

    was frisked. He was found in possession of a screwdriver, a pair of cutting pliers, a pair of surgical gloves and black gloves, and a ring containing several keys.

At trial the appellant admitted he and his accomplice were attempting to get into the townhouses but contended that they only wanted to look around, although they were not interested in renting any of the properties.

The indictment in this case stated that the alleged offenses occurred on January 24, 1973 when in fact they occurred on January 24, 1974. The dates are significant as the appellant was found guilty of violating the Crimes Code which was not in effect on January 24, 1973. However, it appears that the incorrect date on the indictment was a typographical error which did not in any way prejudice the appellant, nor did he object to the erroneous date in the indictment until after trial. Pa.R.Crim.P. 220 permits the court to amend the indictment to correct the date charged "provided the indictment as amended does not charge an additional or different offense." The Court corrected the date after the trial was over, and this merely conformed the indictment to the proof which may properly be accomplished after verdict if the defendant is not prejudiced thereby. Commonwealth v. Syren, 150 Pa. Super. 32, 27 A.2d 504 (1942).

There is nothing to suggest that in this case the appellant was misled by the indictment. The testimony establishes the date of the offenses as January 24, 1974, and at trial appellant admitted that he was present at the scene of the alleged offense on that date although he contended that he had no criminal intent. It is also significant that the day and month were correct in the indictment, which was erroneous only as to the year.

Next, appellant contends he could not be convicted of conspiracy to commit criminal trespass and attempt to commit criminal ...


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