No. 1590 October Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lebanon County at No. 270 of 1978.
John C. Tylwalk, Assistant Public Defender, Lebanon, for appellant.
Thomas S. Long, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
Hester, Cavanaugh and Van der Voort, JJ.
The appellant was convicted of burglary, conspiracy and receiving stolen property following a jury trial before Walter, J. Motions for new trial and in arrest of judgment were denied and the appellant was sentenced to five to twenty years for burglary, five to twenty years for criminal conspiracy and three and one half to seven years for receiving stolen property. All sentences are to run concurrently. Appellant has filed a direct appeal to this Court from the judgment of sentence.
On or about January 28, 1978, Kleinfelter's Auction Room was broken into. Among the items removed were a safe located in a second floor apartment, as well as jewelry, two pistols, a large silver service and coins. On the early morning of January 29, 1978, the appellant and William Kelliher, who had worked at Kleinfelter's Auction until June, 1977, and who was familiar with the upstairs apartment, as well as the downstairs offices and rooms, arrived at a Mr. Harlan's home, according to the testimony of Mr. Harlan who was the principal witness for the Commonwealth. Mr. Harlan testified that appellant requested a screwdriver, sledgehammer and flashlight from him and that appellant and Kelliher then removed a safe from a pickup truck which they had with them and which also contained several boxes. Harlan testified that appellant and Kelliher finally broke open the safe which contained old coins, jewelry and papers and that appellant acknowledged that the safe came from Kleinfelter's Auction House.
At trial, the appellant called his girl friend, Bonnie Sweigart, to testify on his behalf. She testified that at the time of the alleged crimes she and the appellant were living together. She further stated that at about noon on January 29, 1978, Paul Harlan came to her home looking for the appellant and she refused to say where he was. According to her testimony, at that time the appellant was visiting her sister's house. Appellant's sister also testified that on the afternoon of January 29, 1978, appellant was at her home.
On cross-examination the following testimony was given by Miss Sweigart:
Q. Miss Sweigart, isn't it true that you were charged with the offense of retail theft, along with Paul Harlan?*fn1
THE COURT: Answer the question ...