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COMMONWEALTH PENNSYLVANIA v. ORLANDO MCCREA (11/03/82)

submitted: November 3, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ORLANDO MCCREA, APPELLANT



No. 1692 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trials Division, at Nos. 790-91, June Session, 1980.

COUNSEL

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Rowley and Van der Voort, JJ.

Author: Rowley

[ 308 Pa. Super. Page 285]

On April 23, 1981, appellant was convicted, after a non-jury trial, of attempted burglary and possessing instruments of crime (a pair of pliers and a pocket knife). Post-trial motions were filed and denied and appellant was sentenced to time served for possessing instrument of crime and three years probation for attempted burglary. This appeal followed.

Two issues are raised on appeal: 1) Was the evidence sufficient to support the convictions?; and 2) Did appellant's sentence violate 18 Pa.C.S.A. ยง 906, which bars conviction of more than one inchoate crime?

[ 308 Pa. Super. Page 286]

The following evidence was presented at trial. At approximately 2:55 A.M. on May 31, 1980, Officer Ommit Levine went to the Park's Farm Market at 5131 Woodland Ave., Philadelphia, in response to a police radio call. The officer, carrying a flashlight, entered the alley behind the market. This alley was described as being six to seven feet wide and L-shaped. The only means of access to or exit from the alley, other than from Woodland Ave., would be by climbing a six to seven foot brick wall at the rear of the alley. The officer observed appellant, who was in the process of urinating, about twenty feet into the alley. He waited until appellant had finished, then told him to place his hands on the wall. Appellant then "took his right hand to reach into his belt to grab some object". The officer "grappled" with appellant, forced him to the ground, and took a pair of pliers from inside his belt. After handcuffing him, the officer found a pocket knife in appellant's right front pocket. Because the blade was bent, the knife would only close part way.

Other officers arrived at the alley and the area was searched. A jackbase with a smudge of aqua colored paint on it was found approximately four feet from where appellant was standing. Around the corner of the L-shaped alley, approximately ten to twelve feet*fn1 from where appellant was first observed, a one foot by one foot hole was discovered in the cinderblock wall of the market, which was painted aqua. The hole did not go through the wall.

The only other witness presented by the Commonwealth was the owner of the market, who testified that the hole had not been there when he had closed the store the previous evening.

Appellant presented no evidence.

The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, the ...


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