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decided: October 5, 1982.


No. 497 January Term, 1979, Appeal from the Order of the Superior Court (October Term 1977, No. 2366) Affirming the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia at December Term, 1976, No. 1673.


John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Mark Gurevitz, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., filed a concurring opinion. Flaherty, J., joined in this opinion and the concurring opinion of Roberts, J. McDermott, J., filed a dissenting opinion.

Author: Nix

[ 498 Pa. Page 667]


In this appeal appellant seeks in the alternative discharge or the award of a new trial. In the first instance it is contended the evidence presented against appellant was insufficient as a matter of law to sustain the conviction. The alternative position, that at the very least the judgment of sentence must be vacated and a new trial awarded, is predicated upon the claims that the court erred in denying the suppression motion and the rejection of after-discovered evidence was improper. Although we do not accept appellant's assertion as to the insufficiency of the evidence, we do agree that he is entitled to a new trial because of an erroneous ruling on the suppression motion.*fn1

On December 15, 1976 at 3:15 p. m. Officer James McCoy, a member of the Philadelphia Police Department, was dispatched to 5115 Willows Avenue in response to an anonymous call to investigate "males with stolen property in a vacant house." Upon the arrival of Officer McCoy and his partner at the designated premises, they found stereo equipment, wrapped Christmas gifts, clothing, pottery and other items. Their inspection of the scene revealed across the driveway at 748 South 51st Street a rear door was broken

[ 498 Pa. Page 668]

    down and that the hinges had been broken off. Officer McCoy entered the home and found drawers ajar and items strewn over the floor. Approximately 10 minutes after the officers' arrival at the scene, Mr. Harold Bennett appeared and identified himself as the owner of 5115 Willows Avenue. He stated that he had left his home between 10:30 a. m. and 11:00 a. m. that morning at which time the property was secured and no one had been given permission to enter in his absence. The examination of the scene also disclosed trails of footprints in a muddy plot of ground between Mr. Bennett's home and the rear of the vacant premise. Mr. Bennett identified the goods found in the abandoned premise as being taken from his home.

Officer McCoy began to patrol the area at which time he observed three males a block and a half from the scene of the burglary. The men attracted his attention because of the mud on their shoes. Appellant, a member of the trio, had a brown paper bag in his hand. The officer approached the group and they made no effort to avoid the encounter. The officer asked for identification and the three men were unable to produce any. The officer asked appellant what was in the bag he was carrying and appellant immediately replied that it contained a hat. Appellant showed the hat to the officer, at the officer's request, and stated that he had received it from a friend. In response to a question concerning the condition of his shoes, appellant stated he had probably walked through dirt or a field.*fn2

The officer decided to transport the group to the home of Mr. Bennett for a possible identification. Before placing the men in the police vehicle, the officer conducted a "pat down" search which produced from one of appellant's companions a ring and a silver dime of numismatic value. The complainant identified the hat, ring and silver dime as being items taken from his house. The men were then placed under arrest and charged with burglary and theft by unlawful taking.

[ 498 Pa. Page 669]

After a denial of the pre-trial suppression motion, appellant waived trial by jury and proceeded to trial on the basis of the evidence admitted at the suppression proceeding. The defendant rested without offering a defense and was found guilty as charged. Subsequent to the disposition of post-verdict motions adverse to appellant, a sentence of a term of imprisonment of four to twenty-three months was imposed. The conviction was affirmed by the Superior Court sitting en banc by a four to two vote.*fn3 We granted review.

I. Sufficiency of the Evidence.

This claim of appellant is quickly disposed of on the instant record. The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979); Commonwealth v. Sadusky, 484 Pa. 388, 399 A.2d 347 (1979) citing Commonwealth v. Sullivan, 472 Pa. 129, 149-150, 371 A.2d 468, 478 (1977). See also, Commonwealth v. Horton, 485 Pa. 115, 401 A.2d 320 (1979); Commonwealth v. Toney, 474 Pa. 243, 378 A.2d 310 (1977); Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975). Moreover, a claim of insufficiency of the evidence will not be assessed on a diminished record, but rather on the evidence actually presented to the ...

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