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COMMONWEALTH PENNSYLVANIA v. DONALD WILDER (10/27/78)

decided: October 27, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD WILDER, APPELLANT



No. 1116 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Indictment Nos. 517-519 of May Sessions, 1976.

COUNSEL

Eric S. Plaum, Philadelphia, for appellant.

Michael R. Stiles, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.

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

Author: Cercone

[ 259 Pa. Super. Page 481]

Appellant, Donald Wilder, was convicted of possessing instruments of crime, criminal conspiracy, and attempted burglary at a non-jury trial in the Court of Common Pleas of Philadelphia County. Post-trial motions were denied and appellant was sentenced to one to five years in prison on each count, each to run concurrently. We affirm the decision of the lower court.

On appeal, appellant contends first that the evidence was insufficient to sustain the convictions. The test for sufficiency of the evidence is whether, in viewing the evidence in the light most favorable to the Commonwealth, the trier of fact could have reasonably found that all elements

[ 259 Pa. Super. Page 482]

    of the crimes were established beyond a reasonable doubt. Commonwealth v. Goodman, 465 Pa. 367, 369, 350 A.2d 810 (1976).

The record, read in the light most favorable to the Commonwealth, shows the following facts: at approximately 2:45 a. m. on April 16, 1976, police officer Peter Polakow, while on routine patrol, observed the appellant and a co-defendant, Jesse Smith*fn1 attempting, with a steel bar, to pry open a metal grate in front of a men's shop. The police officer was approximately 35 feet away from the store at the time of this observation. Appellant Wilder had one hand on the bar and the co-defendant had two hands on it. The officer observed the two for approximately 30 seconds in a well-lit area, and at one point was able to observe Wilder's face. As the patrol car approached, the appellant and co-defendant dropped the steel bar and ran. Officer Polakow apprehended Wilder a short distance away from having lost sight of him for approximately 15 seconds. An inspection of the premises revealed that the metal grate was bent out of shape. The parties stipulated that the owner of the shop would testify that his store had been closed and appellant had not been given permission to enter.

Appellant testified he was en route to a Chinese restaurant at the time of his arrest. The judge in the lower court did not find his testimony credible, but believed the testimony of Officer Polakow and his positive identification of appellant at the scene of the crime. Part of this identification was based on the fact that appellant had a "cast"*fn2 on his arm which the officer observed at the time of the commission of the crime and which prevented appellant from being handcuffed upon his arrest.

Based on this evidence, appellant argues the police officer could not have identified him beyond a reasonable doubt. However, the ...


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