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filed: February 25, 1983.


No. 990 PITTSBURGH, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Westmoreland County, No. 1308 of 1980.


Dante G. Bertani, Public Defender, Greensburg, for appellant.

Margaret E. Picking, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

Hester, McEwen and Johnson, JJ. Johnson, J., files a concurring and dissenting opinion.

Author: Hester

[ 311 Pa. Super. Page 117]

On April 18, 1980, the appellant, Edgar Clinton Wiltrout returned from work to his trailer home in Westmoreland County in the early evening with plans to meet friends at

[ 311 Pa. Super. Page 118]

    the Foothills Tavern. Having bathed, and while dressing, his friend, Marion John Steppits arrived to accompany him.

When the appellant was prepared to leave his home, he instructed Steppits to remain until he returned from an errand. The appellant thereafter walked alone to CB City on Route 30, some 500 yards from his trailer home. CB City was located on Route 30, several hundred yards from the Beatty Crossroads. It was a retail enterprise owned and operated by Joseph Poponick; the building itself was owned by the appellant's brother, Donald Wiltrout, and leased to Mr. Poponick.

Under the pretense of investigating an unauthorized person's presence on the premises of CB City, the appellant entered the building through the rear wall after prying open a plywood panel. This occurred following the close of business for the day. A security alarm system summoned Trooper Fred Street of the Pennsylvania State Police to the scene. Upon his arrival, Trooper Street detected inside movement through the glass front doors; thereafter, he skirted the outside and observed the loosened plywood rear panel. A leather valise and hammer were found next to the plywood panel.

Trooper Street returned to the front of the building where he was accosted by the store owner's mother and Trooper John Mosser. They were both instructed to watch the front of the building while Trooper Street returned to the outside rear portion.

Upon arriving a second time at the point of entry, Trooper Street observed the outside plywood panel being pushed outwardly by the appellant attempting to exit surreptitiously. When Trooper Street identified himself and cautioned the appellant to continue exiting with his hands visibly in front of him, the panel closed and the appellant retreated to the inside.

Trooper Street returned to the front and instructed Trooper Mosser to continue his vigil of the front entrance. Trooper Mark Griffin, the last enforcement officer to arrive,

[ 311 Pa. Super. Page 119]

    accompanied Street through the rear panel into the building. Once inside, they immediately encountered a group of boxes scattered on the floor. The appellant was not discovered in either the storage or showroom areas. A piece of the suspended ceiling in the showroom was lying on the floor thereby alerting the troopers to the possibility that the appellant was concealing himself above the ceiling; however, a search of that space proved fruitless. The appellant was eventually found partially concealed in the restroom's suspended ceiling with only his legs and feet visible. He was pulled to the floor and detained by Trooper Mosser while Troopers Street and Griffin checked for any other intruders. No one was found.

Appellant was arrested and charged with burglary. A jury trial commenced on November 10, 1980 and a verdict of guilty was returned. Motions for a new trial and in arrest of judgment were filed, but subsequently denied. On September 1, 1981, the appellant was sentenced to a term of imprisonment of not less than four (4) nor more than ten (10) years. His motion for reconsideration of the sentence was denied and this appeal followed.

Appellant's first contention is that the trial court erred in admitting into evidence a photograph of the valise and hammer. He alleges that a foundation for the demonstrative evidence was never laid and that such evidence was irrelevant. We disagree with both allegations.

The photograph of the valise and hammer was designated as Commonwealth's exhibit # 5. Trooper Carl Schweinsburg, a records and identification officer with the Pennsylvania State Police, took this particular photograph, along with others. He testified to having taken photograph exhibit # 5 on April 18, 1980 and to recognizing his handwriting setting forth the incident number, date and initials on the back. Furthermore, Trooper Street, while occupying the witness stand, identified the satchel and ...

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