No. 1155 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. 8005012A.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Rowley, Popovich and Hoffman, JJ. Popovich, J., files a concurring and dissenting statement.
[ 317 Pa. Super. Page 563]
Appellant was convicted, after a jury trial, of burglary and theft. Post-trial motions were filed and denied. Appellant was sentenced to ten to twenty months imprisonment on the burglary count. A suspended sentence was imposed on the theft count.
Four issues are raised on appeal: 1) Was the evidence sufficient to support the convictions?; 2) Did the court err in failing to give an alibi instruction?; 3) Was counsel
[ 317 Pa. Super. Page 564]
ineffective in failing to object to an erroneous jury instruction?; and 4) Was the sentence imposed illegal?
In reviewing the sufficiency of the evidence to support a conviction, we must view that evidence in the light most favorable to the Commonwealth. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979). Viewed in that light, the record reveals the following. On July 18, 1981, at approximately 3:35 A.M., Pittsburgh Police Officer Paul Lugalia and his partner were passing an Arco Gas Station at 40th and Butler Streets, in the Lawrenceville Section of the city. He observed:
"a white male with a white shirt, a cast on his arm, dark pants, running not fast, but like a trot in front of the gas station window and he put up his hand to either tap on the window or wave to somebody and he proceeded across the gas station lot".
Another white male then climbed out of the gas station window and followed the first man across the street. The officers broadcast a burglary in progress and a description of the two suspects. They attempted to follow the suspects but soon lost sight of them near the Fort Wayne Cigar Store. After a brief search, the officers stopped at the cigar store. They were informed by the clerk that a man matching the description of the first suspect had been in the store a few minutes earlier. The officers returned to the gas station and found a number of articles piled against the wall where the first man had been standing. Several minutes later, Officers Jones and Reed, responding to the call for assistance, observed appellant, who met the description of the first suspect, running on Foster Street, a few blocks from the gas station. The officers chased appellant and apprehended him.
Appellant testified that he spent the late evening and early morning hours at a bar called Sharp's, which is located about five blocks from the Arco Gas Station. Appellant presented Howard Mazzoccoli, who testified that he was with appellant at Sharp's until about 1:30 A.M. Appellant stated that he left ...