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COMMONWEALTH PENNSYLVANIA v. GARY DARREN STASIAK (10/08/82)

filed: October 8, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY DARREN STASIAK, APPELLANT



No. 639 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Westmoreland County, at Nos. 1522 and 1522A October Term, 1978.

COUNSEL

Morton DeBroff, Pittsburgh, submitted a brief on behalf of appellant.

Albert Nichols, District Attorney, Greensburg, submitted a brief on behalf of Commonwealth, appellee.

Cercone, P.j., and Brosky, and Montemuro, JJ.

Author: Cercone

[ 305 Pa. Super. Page 262]

Appellant was convicted in a non-jury trial of burglary, receiving stolen property, conspiracy, and possession of controlled substances with intent to deliver. Appellant's omnibus pre-trial suppression motion was denied. Appellant's post-verdict motions were denied and the appeal followed. Appellant received a sentence of three to six years for the burglary, conspiracy, and receiving stolen property convictions, and a suspended sentence for the violation of the Controlled Substance Act conviction. This appeal followed. We affirm.*fn1

Appellant raises three issues on appeal. First, whether the evidence was insufficient to support the convictions and whether the Commonwealth failed to prove the corpus delecti of any of the crimes with which the appellant was charged. Second, whether an extra-territorial arrest of appellant was unlawful. And third, whether the warrantless arrest of the appellant was made without probable cause.

On September 21, 1978, at about 1:45 a.m., the Thrift Drug Store on Route 22 in Murrysville, Westmoreland County, was burglarized. An alarm was activated which alerted the Murrysville Police. In addition, two guards at the Beckwith Machinery Company which is located across the road, heard a noise which came from the direction of the Thrift Drug Store. One guard telephoned the police and reported that he had seen two people running in the parking lot away from the Thrift Drug Store: he described one as wearing a red shirt, and the other as wearing dark clothing. He also indicated that less than a minute after he had observed the individuals running from the store a light green "General Motors" or "Buick" automobile came from

[ 305 Pa. Super. Page 263]

    the direction in which the two had been running and headed west on Route 22. He did not state that he had seen the vehicle leave the drug store parking lot. A call went out on the police radio immediately after the guard reported the incident.

Officer Andrew Patrick received the call about the burglary while he was east of the Thrift Drug Store, but travelling in a west bound direction on Route 22. He proceeded westbound on Route 22 and passed by the Thrift Drug Store within a minute. At the Westmoreland-Allegheny County line he saw a vehicle in front of him also heading westbound which was already in Allegheny County. It was the only vehicle on the road.

As Officer Patrick caught up with the car, he observed that it was a light gray 1971 Buick with a black vinyl top. He stopped the car at a site approximately one mile past the county line and approximately two and one half miles from the drug store. He observed three men in the car. The front seat passenger was wearing a red shirt, and the passenger in the rear, appellant, was wearing black. Between the sounding of the burglar alarm and the stopping of the car less than four minutes had elapsed. When Officer Patrick approached the car and shined his flashlight inside he observed several bottles only partially concealed under the front seat. Some of the bottles were marked as having come from the Thrift Drug Store. The appellants were then arrested.

In testing the legal sufficiency of the evidence to support the verdict, the reviewing court is not permitted to substitute its judgment for that of the fact finder. The reviewing court is restricted to assessing the evidence in the light most favorable to the verdict winner, here the Commonwealth, and drawing all proper inferences that the evidence suggests in that party's favor. Commonwealth v. Smith, 490 Pa. 374, 378, 416 A.2d 517, 519 (1980). The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Harper,

[ 305 Pa. Super. Page 264485]

Pa. 572, 576, 403 A.2d 536, 538 (1979).*fn2 We hold that the evidence was sufficient to support all the convictions.

Under the Crimes Code of Pennsylvania, a person is guilty of burglary if he enters a building or occupied structure with the intent to commit a crime therein, unless the premises are at the time open to the public or the person who enters is licensed or privileged to do so. 18 Pa.C.S. ยง 3502(a). In order to prevail at trial, the Commonwealth must prove beyond a reasonable doubt the following three elements: (1) entry of a building or occupied structure by the defendant; (2) with the contemporaneous intent on the part of the defendant of committing a crime therein; (3) at a time when the premises were not open to the public and the defendant was not then licensed or privileged to enter. Commonwealth v. Tingle, 275 Pa. Superior Ct. 489, 419 A.2d 6, 9 (1980). "[T]he specific intent to commit a crime necessary to establish the second element of burglary may . . . be found in the Defendant's words or conduct, or from the attendant circumstances together with all reasonable inferences therein . . . . A fact ...


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