No. 224 March Term, 1977, Appeal, in forma pauperis, from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of the County of York, Pennsylvania, at No. 360 of 1976.
Thompson J. McCullough, Assistant Public Defender, York, for appellant.
Daniel F. Wolfson, Assistant District Attorney, and Donald L. Reihart, District Attorney, York, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 113]
This is a direct appeal from judgment of sentence. Appellant was charged with burglary and theft and following a trial by jury, was convicted of burglary.*fn1
The facts established that in the early morning hours of March 8, 1976 at approximately 2:32 A.M., a silent burglar alarm was activated in the Tremont Restaurant in the City of York, Pennsylvania. City police officers arrived shortly
[ 256 Pa. Super. Page 114]
and surrounded the large building, which was closed to the public at that time. They found that entrance was gained through a broken basement window. As the police began searching the premises they noted several vending machines had been pried open, the coin boxes were removed, but were found discarded elsewhere within the building. Estimated amounts of change, alleged to have been contained inside the coin boxes was never located. A portable TV set appeared to have been moved a substantial distance, from the upstairs recreation room where it was originally and regularly located, to a downstairs banquet room where it was found on the floor next to the door. Then, in the basement garage area, which was presently being used for storage of folded tables and chairs, the police officers heard a noise. They identified themselves as police officers and called out to the outline of a person in the shadows to come out and surrender. After repeating this order approximately three times, and after one of the officers cocked his service revolver, the appellant came out from behind a stack of folded tables. In his possession, appellant was found to have a large sturdy standard head screwdriver, a small flashlight, some used Pennsylvania lottery tickets, and $1.46 in change. Although he could not positively identify the items in question, the restaurant manager testified at trial, over objection, that the flashlight and lottery tickets were "similar" in size and appearance to like items that were discovered missing from the cocktail lounge where they were usually located.
Appellant also objected to a remark made during the Assistant District Attorney's closing argument to the jury, that "If you believe the officer's testimony, you have to find that Mr. Nutter entered the premises with the intent of committing a crime."
Following the jury verdict against appellant, post-verdict motions were filed and subsequently denied. A term of imprisonment (2 1/2 to 5 years) was imposed and this appeal followed.
[ 256 Pa. Super. Page 115]
Three issues are asserted as grounds for a new trial. First, appellant contends that the trial court erred in admitting the flashlight and lottery tickets as exhibits of items intended to be stolen from the restaurant. Appellant complains that both items are mass-produced and neither was positively identified by the owner. The only testimony as to each of these items was that given by the restaurant operations manager, who stated that they were like or similar to items kept in the cocktail lounge by the bartender. Appellant argues that they were inadmissible since it was not established that the items were on the premises prior to his entry. He concludes that his mere possession of these items is irrelevant to the issues of burglary and theft, citing Commonwealth v. DelMarmol, 206 Pa. Super. 512, 214 A.2d 264 (1965) as sole support for his position. However, the DelMarmol decision is clearly distinguishable. The objectionable penknife involved in the DelMarmol case was found off the burglarized premises, on the counter top of a nearby jewelry store in which defendant was apprehended, and it was found three days after his apprehension. There was no testimony that anyone saw defendant DelMarmol put the knife there and in fact there was no testimony that either of the defendants in the DelMarmol case were seen with a knife earlier at the scene of the burglary, nor was there any evidence of knife marks on the door. Furthermore the inadmissibility of the knife was compounded when the police officer gave prejudicial testimony that the penknife could be used to slip back the bolt of the lock. Under those circumstances the DelMarmol court correctly held that since there was insufficient evidence connecting the penknife with the crime or with the defendant, it was therefore irrelevant and inadmissible. Here, unlike DelMarmol, the flashlight and lottery ...