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COMMONWEALTH PENNSYLVANIA v. MARK PERTSCHI (01/04/80)

filed: January 4, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
MARK PERTSCHI, APPELLANT



No. 2410 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, of Bucks County, at No. 3239 of 1976.

COUNSEL

Mel D. Kardos, Assistant Public Defender, Doylestown, for appellant.

Kenneth G. Biehn, District Attorney, Doylestown, submitted a brief on behalf of Commonwealth, appellee.

Van der Voort, Hester and Wieand, JJ. Wieand, J., files a concurring and dissenting statement.

Author: Van Der Voort

[ 273 Pa. Super. Page 413]

On November 4, 1976, at approximately 12:45 A.M., Officer Raymond Jacquelin of the Buckingham Township police was in his patrol car making his customary inspection of the Buckingham Shopping Center, when he spotted appellant and another individual on a rear stairway leading up to the service entrances of the stores. The two men were lying on the stairs, facing the stairs and the upward-sloping ground below. While Officer Jacquelin was questioning the two men, a call came in over the police radio reporting that an alarm had been tripped at the Buckingham Pharmacy, one of the six to eight stores in the shopping center. Officer Jacquelin arrested the men and conducted a search of the area, discovering a hammer and folded paper bag on the ground beneath the steps, within arm's length of where the

[ 273 Pa. Super. Page 414]

    two men had been found. Although it had rained earlier and the ground was wet under the stairs, these two objects were dry. A search by another police officer, Detective Steven Daniels, at approximately 1:00 A.M., turned up a leather glove and a sock, both dry, in the same area below the steps. A daylight search later disclosed a pair of surgical gloves in the same area.

A day or so later, Detective Daniels was speaking with appellant's father in appellant's presence, when appellant remarked that there had been a third subject, Mark Kosminoski of Clementon, New Jersey, who had been "the driver of the car that night", and that Kosminoski had probably left the scene because he saw the police car coming. (No such car had been noticed by Officer Jacquelin).

Appellant was tried and found guilty by a jury of attempted burglary, possession of instruments of crime (the hammer, sock, and glove), and conspiracy, and was sentenced to a term of one to twelve months imprisonment. The case is before us on direct appeal.

At the trial, in addition to the testimony of Officer Jacquelin and Detective Daniels (upon which testimony the preceding recitation of facts was based), the Commonwealth presented the testimony of Jacqueline Croce, who had been on duty at Holicong Locksmith on the night in question. Ms. Croce testified that at approximately 12:48 A.M. an alarm went off where she was working, alerting her that something or someone had set off a motion detector at the Buckingham Pharmacy. Ms. Croce notified the Buckingham police, which apparently resulted in the call which Officer Jacquelin received while questioning appellant and his companion.

Appellant argues that the evidence was insufficient to convict him of any of the charges. We have examined the record, keeping in mind appellant's specific arguments, and we find that the record does support the convictions. The jury could have found that the Buckingham Pharmacy was the target of the burglary (rather ...


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