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COMMONWEALTH PENNSYLVANIA v. OSCAR RODRIQUEZ (02/25/81)

submitted: February 25, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
OSCAR RODRIQUEZ, APPELLANT



Nos. 1537 & 1538 Philadelphia, 1980, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Berks County, Nos. 78060001 & 78065601.

COUNSEL

Charles B. Coleman, Assistant Public Defender, Reading, for appellant.

George C. Yatron, District Attorney, Wernersville, for Commonwealth, appellee.

Spaeth, Johnson and Wieand, JJ. Spaeth, J., files a dissenting opinion.

Author: Wieand

[ 291 Pa. Super. Page 242]

In separate jury trials Oscar Rodriquez was convicted of two burglaries in neighboring townships of Berks County.*fn1 Appeals from the separate judgments of sentence, after post trial motions had been denied, were consolidated because of the similarity of issues raised. We will consider these issues seriatim.

The first series of issues pertain to the sufficiency*fn2

[ 291 Pa. Super. Page 243]

    and weight*fn3 of the evidence. Our review of the record is persuasive, however, that in both cases the evidence was more than ample to establish appellant's guilt. A series of burglaries had occurred in North Heidelberg and Marion Townships in Berks County. Included were burglaries committed at the home of Barry Gernert and the residence of David and Judy Shappell. As a result of police investigation, it was learned that appellant, or someone similar in appearance, had occasionally been seen at or near the scene of the burglary. In one instance he had knocked on the door of a neighbor of a victim. Consequently, the investigation began to focus more closely on appellant. Ultimately it led to a residence leased by Harry Peiffer, where appellant shared a bedroom with Peiffer's daughter, Jeanie. There, a search of the premises conducted with the consent of Peiffer and his daughter, turned up various items taken in the Gernert and Shappell burglaries. Appellant, who was asleep in his girl friend's bedroom, was awakened and, after being arrested and told of his rights under Miranda, showed police additional items, including guns, which had been taken in the burglaries. Jewelry and coins, later identified by the victims of the burglaries, were also found in the bedroom. Appellant made inculpatory statements and, while accompanying police, identified homes which had been burglarized. Although appellant took the stand to deny that he had made any statements to police, it was for the jury to pass on the credibility of the witnesses and to accept or reject their testimony. Commonwealth v. Weaver, 274 Pa. 593, 418 A.2d 565 (1980); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Luther, 266 Pa. Super. 240, 403 A.2d 1329 (1979).

[ 291 Pa. Super. Page 244]

Appellant contends, however, that the physical evidence seized at the Peiffer residence was the product of an unlawful search and should have been suppressed. He argues that the pre-trial hearing judge erred in finding that the search had been conducted with the voluntary consent of the lessee, Peiffer, and his daughter, Jeanie.

After commission of a burglary subsequent in time to the Gernert and Shappell burglaries, police had found some of the stolen items in a wooded area near the burglarized home. Because appellant was already a suspect, the home where he was living with the Peiffers was placed under surveillance. When police observed a Puerto Rican male leave with a white male in a black and white Chrysler, Trooper Seese followed. The car led him to the wooded area where the stolen goods had previously been found. The Chrysler then sped away, and Seese lost it in traffic. Later, the vehicle was again observed, and this time it was stopped. The vehicle was found to be occupied by Peiffer and his daughter. Upon inquiry, Jeanie told police that appellant was sharing a room with her in her father's home and that she had reason to believe that stolen items were to be found in the bedroom. She and her father consented to a search of the residence by police. The hearing court found that their consent was voluntary, and the evidence supports that finding. The search, therefore, was proper. It was conducted by and with the voluntary consent of persons who were authorized to give such consent. See generally: Commonwealth v. Merbah, 270 Pa. Super. 190, 411 A.2d 244 (1979); Commonwealth v. Reiland, 241 Pa. Super. 109, 359 A.2d 811 (1976).

The argument which appellant advanced most strenuously is that his trials in the cases on appeal did not take place within 180 days as required by Pa.R.Crim.P. 1100. The complaints were filed against appellant on June 16, 1978. The run date, therefore, was December 13, 1978. However, on July 7, 1978, appellant escaped from the Berks County Prison; and he was not again available in Berks County until January 29, 1979. This period must be excluded from

[ 291 Pa. Super. Page 245]

    the time within which appellant was to be tried, for he was not then available for trial. Pa.R.Crim.P. 1100(d)(1). See also: Commonwealth v. Goodman, 260 Pa. Super. 266, 393 A.2d 1256 (1978). The new run date, therefore, was July 2, 1979.

Because the numerous charges against appellant entailed a possibility of nine separate trials, the Commonwealth, on March 2, 1979, filed a petition for extension of time. After hearing trial dates were set in all cases. In the two cases now on appeal, trials were to commence on June 15, 1979, and July 13, 1979. However, on May 16, 1979, appellant appeared in open court, expressed dissatisfaction with his attorney, and requested the appointment of new counsel. In order to obtain the delay needed for new counsel to be appointed and to prepare for trial, appellant, expressly and in writing, waived his right to a speedy trial under Rule 1100.*fn4 The waiver was as follows:

"AND NOW THIS 16 day of May, 1979, I, Oscar C. Rodriquez, defendant in the above named cases, hereby request a continuance of trial on the above named cases waiving or giving up the right to be tried within 180 days after filing of complaint as provided by Rule 1100, the right to be released without bail if in prison and not tried within two terms of criminal court, and the right to a speedy trial. It is also understood that I, Oscar C. Rodriquez, will be given no continuance due to omnibus pre-trial motions or the like. This is a full and complete waiver of time on all ...


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