No. 2163 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, at Nos. 79-11-1478, 1480, and 1481.
Leonard Rubin, Philadelphia, for appellant.
Deborah Fox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Beck, Watkins and Hoffman, JJ.
This is a direct appeal from judgment of sentence. We now affirm in part and dismiss in part.
Appellant was arrested on November 5, 1979 and charged with burglary, criminal trespass, possession of an instrument
of crime generally, and criminal conspiracy.*fn1 The Philadelphia Defenders Office was appointed to represent appellant at trial. A motion to suppress evidence was filed and a hearing on the motion was held July 23, 1980 before Judge Thomas A. White. The motion was denied. Defendant thereupon waived his rights to a jury trial and to a recusal request in open court following a full colloquy. Appellant's trial counsel joined the district attorney in stipulating that all the relevant and admissible testimony from the suppression hearing be incorporated into the record of trial, also before Judge White, which followed almost immediately after the denial of the suppression motion. Judge White found appellant guilty of attempted burglary, conspiracy, and possessing an instrument of crime generally. Appellant was acquitted of the criminal trespass charge. Counsel for appellant filed no post-verdict motions, but appellant himself filed pro se motions. The motions were denied on September 17, 1980 and appellant was sentenced that same day. On the burglary and criminal conspiracy charges the court sentenced appellant to eighteen months to three years on each charge to be served concurrently. On the remaining conviction he was given a suspended sentence.
Appellant filed a timely appeal from the attempted burglary conviction only. On July 27, 1981 appellant petitioned for allowance to amend his appeal to include the criminal conspiracy and the possessing on instrument of crime convictions as well. The petition was granted without prejudice to the Commonwealth's right to brief or argue that these latter appeals were untimely. We agree with the Commonwealth that the latter two convictions were not timely appealed and hence are not properly before us. See Commonwealth v. Hill, 267 Pa. Superior Ct. 140, 142 n. 1, 406 A.2d 558, 558 n. 1 (1979).
Appellant now argues that the evidence is insufficient to sustain the attempted burglary conviction. Reading
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the evidence in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973) we believe the court could properly find appellant guilty of attempted burglary. Reading the evidence in that light, the facts as developed at trial are these. On November 5, 1979 at 4:30 a.m. one officer Wilson of the Philadelphia Police Department responded to a radio call about a burglary in progress near the corner of Germantown and Somerset Streets. Upon arriving at the scene Officer Wilson observed appellant (known to him because of a previous arrest), and a companion as they approached a public telephone on the wall of the Raisman Toy Store at the corner in question. Appellant was carrying something in his hands. Appellant looked at Officer Wilson and recognized him. Appellant then placed the items on a ledge near the telephone. The two men then walked away from the scene. Officer Wilson went to the telephone and found a claw hammer and a screwdriver which had been altered such that it looked much like a chisel. The officer then observed a piece of cardboard partially covering a hole in the wall in the toy store. This hole was about fifteen feet from the spot where appellant and his companion were when Officer Wilson first observed them. Officer Wilson then followed the two men and arrested them. At the time of the arrest both appellant and his companion were wearing ...