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COMMONWEALTH PENNSYLVANIA v. DONALD MILLER (06/27/80)

filed: June 27, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD MILLER, APPELLANT



No. 676 October Term 1979, Appeal from Judgment of Sentence by the Court of Common Pleas, Trial Division Philadelphia County, Criminal Section, C.P., October Term, 1978, Nos. 719, 721.

COUNSEL

Anita M. Cohen, Philadelphia, for appellant.

Kenneth S. Gallant, Assistant District Attorney, Erie, for Commonwealth, appellee.

Hester, Wickersham and Lipez, JJ.

Author: Wickersham

[ 279 Pa. Super. Page 255]

The defendant has appealed to this court from his non-jury trial conviction and judgment of sentence on charges of burglary and criminal conspiracy.

"The facts surrounding the defendant's arrest and conviction are as follows. On December 15, 1977, the complainant, Lawrence Fanrak, left his home at about 10:00 a. m. to do some shopping. When he left no one else was at home and he locked the door behind him.*fn1 When he

[ 279 Pa. Super. Page 256]

    returned about an hour later, he saw two men at the front of his house. One of the men was on the top step "looking around" and the second man was going in the front door (N.T. 12/15/78 21). Since Mr. Fanrak knew neither person, he shouted at them, at which point both men ran away (N.T. 12/15/78 23). Mr. Fanrak attempted to pursue them in his car but he lost sight of them for about half an hour. Mr. Fanrak spotted the two again near a vacant lot a short way from his house and again he gave chase, this time on foot. He pursued only one of the men, later identified as the defendant. During the chase, the defendant lost his shoe but did not stop to retrieve it.

"A neighbor of Fanrak's, Maureen Jaroszewski, happened to be on her front porch when Mr. Fanrak was pursuing the defendant and she saw him lose his shoe and continue running (N.T. 12/15/78 49) Mrs. Jaroszewski, a police officer's wife, immediately learned that Fanrak had been chasing a man who had broken into his home and so when the defendant trotted by her home again about fifteen minutes later, she recognized him and noted that he still had on only one shoe (N.T. 12/15/78 57). In addition, Mrs. Jaroszewski watched the defendant get into a car with a "noisy muffler" (N.T. 12/15/78 56). At noon on the same day, Mrs. Jaroszewski was at her post as a crossing guard when she again noticed the defendant behind the wheel of the same car stopped at a red light. This time Mrs. Jaroszewski noted the first three digits on the license tag of the defendant's car (N.T. 12/15/78 58-59).

"Two days later, the defendant was driving his car when the noisy muffler caused Officer Dennis Veale of the Philadelphia Police to stop him (N.T. 12/1/78 120). With the defendant was a red-haired man by the name of John Green, subsequently identified as the second burglar. As Officer Veale was investigating the fact that neither driver nor passenger had license or registration, another police officer told Officer Veale about the Fanrak burglary and supplied him with a description which included the

[ 279 Pa. Super. Page 257]

    color, make, and year of the car and the first three digits of the license plate (N.T. 12/1/78 123). In addition, the burglars were described as two white males, one of whom was a red-head. Officer Veale placed both the defendant and Green under arrest (N.T. 12/1/78 124).

"Later that day, when Mr. Fanrak was shown photographs of both the defendant and Green, he failed to identify the defendant and, therefore, the defendant was released (N.T. 11/29/78 65).

"On May 18, 1978, when Mrs. Jaroszewski was subpoenaed to court for Green's trial, the same group of photographs was shown to her. Present were an Assistant District Attorney, an Assistant Public Defender to represent Green and the same Detective who had shown the photographs to Fanrak. Mrs. Jaroszewski chose the defendant's photograph as the person she had seen Fanrak chasing on the day of the burglary. Pursuant to this identification, the detective obtained a warrant for the defendant's arrest and a complaint was filed on June 5, 1978.

"At trial, Mr. Fanrak stated that he was positive that the man who had entered his front door was the same man he chased and who lost his shoe during the pursuit (N.T. 12/15/78 46-47), although he could not make an in-court identification, Mrs. Jaroszewski was positive that the man whose picture she had chosen was the man she saw Fanrak chasing and the man she saw on two other occasions in his car that same day. In court she identified the defendant as that person (N.T. 12/15/78 62)."*fn2

Defendant raises three questions for our consideration which we shall consider seriatim.*fn3

[ 279 Pa. Super. Page 2581]

. Was the evidence sufficient to sustain the verdict of guilty of burglary and criminal conspiracy?

First, defendant contends that the evidence was insufficient to prove an entry. There is no merit to this suggestion. The victim had left his private home an hour before the incident. When he returned he saw "two people going in my front door." One was in the vestibule, having gone beyond the door leading to the vestibule from the outside. The victim had closed that door when he left the home earlier. After the two persons fled, the victim inspected his ...


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