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COMMONWEALTH PENNSYLVANIA v. LEON SMITH (01/11/80)

filed: January 11, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
LEON SMITH, APPELLANT



No. 2578 October Term, 1978, Appeal from the judgment of Sentence of Stanziani, J., dated September 22, 1978, IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA at No. 435--77 - CRIMINAL

COUNSEL

John A. DiCicco, Assistant Public Defender, Norristown, for appellant.

John J. Burfete, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, Stranahan and Sugerman,*fn* JJ.

Author: Stranahan

[ 274 Pa. Super. Page 282]

The defendant was convicted of theft of a handgun in a non-jury trial. He has now appealed from the judgment of sentence.

On November 7, 1977 the defendant was present at the home of Michael Romano, the owner of the gun. Also present were Romano's wife and three children.

Another child, Mark, was instructed to clean the handgun which was left in a cardboard box on the kitchen table during the evening of November 7. On the morning of November 8, the gun was missing. The defendant was arrested and charged with theft of the gun.

The Commonwealth's evidence against the defendant consisted of testimony of Mark Romano that he overheard a conversation between the defendant and James Rowell that the defendant stated "it was a nice gun, I would like to have it."

The only eyewitness to the theft of the gun was James Rowell, an individual previously convicted of forgery. He testified he saw the defendant take the gun off the table and put it into his pants.

After a preliminary hearing, the defendant filed a Petition for a Writ of Habeas Corpus. A hearing was held before Judge Stanziani who entered an order dismissing the petition.

Subsequently the case was tried before Judge Stanziani, sitting without a jury, and a verdict of guilty of theft was rendered.

Before trial defendant made a Motion requesting that Judge Stanziani recuse himself since he had previously heard the habeas corpus ...


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