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HECTOR GONZALEZ (04/28/78)

decided: April 28, 1978.

IN THE INTEREST OF HECTOR GONZALEZ, A MINOR, APPELLANT


COUNSEL

David R. Eshelman, Assistant Public Defender, Reading, for appellant.

J. Michael Morrissey, District Attorney, Reading, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., note dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 255 Pa. Super. Page 219]

Hector Gonzalez, age 17, appeared before the Court of Common Pleas, Juvenile Division, of Berks County on October 18, 1976, pursuant to a petition filed on September 9, 1976, by an assistant district attorney for Berks County. The petition alleged that Hector Gonzalez was a delinquent child due to his participation in an incident involving the illegal entry of the J. C. Mumma Jewelry Store located at 446 Penn Street, Reading, Pennsylvania. On October 18, 1976, Hector Gonzalez was adjudicated a delinquent child and disposition was deferred until November 3, 1976, at which time he was placed on probation and ordered to make restitution for the damage done to the J. C. Mumma Jewelry Store. From the orders of adjudication and disposition, an appeal was taken to this Court.

Briefly, the facts indicate that on September 7, 1976, at approximately 12:40 A.M., the Reading police were notified by radio that a burglar alarm was sounding at the J. C. Mumma Jewelry Store. Officer Edward Thomas responded to the alert and proceeded to an alleyway at the rear of the jewelry store. While standing in the alley waiting for additional units to arrive, Officer Thomas saw two men jump off the roof of the Farr Shoe Store which is located in the same complex of stores as the Mumma Jewelry Store. The two individuals started running up the alley as Officer Thomas was telling them to stop. He gave chase and at the end of the alley the two turned right and were met by the K-9 corps coming down the street. The two were apprehended at this point and taken to the City Hall, where the appellant was formally charged with conspiracy to commit burglary.

Appellant raises three issues on appeal which we will deal with seriatim. Initially, it is contended that the evidence was insufficient to sustain the adjudication of delinquency.

[ 255 Pa. Super. Page 220]

Since the charge of delinquency was based on the crimes of criminal conspiracy*fn1 and burglary*fn2 it was incumbent upon the Commonwealth to prove the elements of those two offenses beyond a reasonable doubt. It is beyond question that the evidence must be viewed in the light most favorable to the Commonwealth being that it was the verdict winner. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972), Commonwealth v. Miller, 445 Pa. 282, 284 A.2d 739 (1971). The evidence established that a burglar alarm sounded notifying the police that an attempted break-in was occurring at the Mumma Jewelry Store. In response to the alarm, several police officers proceeded to the location where one officer observed two individuals jump from a building adjacent to the Mumma Jewelry Store and start running up the alley. The officer lost sight of the two for approximately five or six seconds when they turned the corner at the end of the alley. When the officer turned the corner, he observed the K-9 corps approaching from the opposite direction and apprehend the two individuals. The owner of the store testified that the partition in his store had been damaged although it was in proper repair when the store was closed earlier that evening. Also, several articles and pieces of furniture were disarranged.

It is appellant's position that no one saw the two individuals attempting to break into the store and there was no testimony establishing that there was any type of agreement to commit a burglary. Criminal conspiracy is defined in Section 903 of Title 18 of Purdon's Consolidated Statutes:

(a) Definition of Conspiracy. -- A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or ...


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