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COMMONWEALTH PENNSYLVANIA v. SAMUEL BENEDETTO (04/26/83)

submitted: April 26, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL BENEDETTO, APPELLANT



No. 92 Pittsburgh, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at Nos. CC8104481A and CC8105724A.

COUNSEL

Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Rowley, Popovich and Hoffman, JJ.

Author: Rowley

[ 316 Pa. Super. Page 136]

Appellant was convicted, after a non-jury trial, of burglary, theft by unlawful taking or disposition, and receiving stolen property. Post-trial motions were filed and denied. Appellant was sentenced to two and one-half to five years imprisonment for burglary. Sentence was suspended on the theft and receiving stolen property charges. This direct appeal followed.

Two issues are raised on appeal: 1) Did the court err in failing to suppress (a) a ring seized from appellant and, (b) appellant's confession?; and 2) Were the sentences imposed illegal?

In reviewing the denial of a motion to suppress evidence, this court will only consider the evidence of the prosecution and so much of the evidence for the defense as, read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Leveille, 289 Pa. Super. 248, 433 A.2d 50 (1981).

Using that standard, the record reveals the following. On June 17, 1981, at approximately 3:00 A.M., Officer Simms of the Clairton Police observed appellant, an acquaintance

[ 316 Pa. Super. Page 137]

    of sixteen years, pulling into a parking lot in a heavily damaged car. Concerned about appellant's well-being, the officer approached him to determine if he needed assistance. During the conversation, the officer noticed a large diamond ring on appellant's finger. When the officer asked for a closer look, appellant showed it to him. Realizing that the ring resembled one taken in a recent burglary, the officer mentioned the burglary to appellant and asked if he could take the ring for identification purposes. Appellant consented, stating that he had won the ring in a crap game. Appellant requested a receipt for the ring, but left while the officer was writing it.

On June 21, 1981, following identification of the ring, appellant was arrested for receiving stolen property. On that same day, the victim went to the police station in hope of recovering some of his stolen property. Appellant was booked and given his Miranda rights. He refused to make a statement to the police, but requested to speak to the victim, who was also a long-time acquaintance of appellant. Officer Simms agreed and proceeded to make some phone calls. He then overheard appellant tell the victim that he had committed the burglary. The police subsequently arrested appellant on additional charges of burglary and theft by unlawful taking.

We hold that the evidence in this case was properly obtained. Therefore, the court correctly denied appellant's motion to ...


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