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filed: April 27, 1984.


No. 1219 Philadelphia, 1982, No. 1484 Philadelphia, 1982, Appeal from the Judgment of Sentence of April 19, 1982, Court of Common Pleas, Montgomery County, Criminal Division No. 1493-81.


Douglas M. Johnson, Public Defender, Norristown, for appellant (No. 1219).

Gerald Thomas Gervasi, Merion, for appellant (No. 1484).

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, President Judge, and Cirillo and Johnson, JJ. Cirillo, J., files a concurring statement.

Author: Johnson

[ 328 Pa. Super. Page 73]

Appellants Christopher J. Balch and Gary Lee Algeo along with Stephen J. Rotondo were arrested April 14, 1981 and charged with burglary (18 Pa.C.S. § 3502), theft of movable property (18 Pa.C.S. § 3921), criminal conspiracy (18 Pa.C.S. § 903) and receiving stolen property (18 Pa.C.S. § 3925). The facts in this case were summarized by the trial court in the following manner:

"On April 14, 1981, a burglary occurred at the Rosen residence at 1139 Norsham Road, Gladwynne, Lower Merion Township, Montgomery County. Taken were a pillowcase from one of the bedrooms and silverware. The Rosens were away at the time, visiting friends in Michigan. Prior to their departure, they had made arrangements with Billy Crockett, a young neighbor lad, to check their premises and take care of their pet while they were away. At about 7:30 p.m., on the evening of the burglary, Billy's father, William G. Crockett, testified that a young man who identified himself as "Tony DiNardo", later positively identified by Mr. Crockett as the defendant Algeo, knocked on the front door of his home and asked to use the telephone to call a tow truck. Upon accompanying this young man outside, Mr. Crockett noticed a car mired in the mud off the driveway of the Rosens' residence. He testified that there were two other young men at the car and while he could not identify them facially, he described the clothing each was wearing. One of them was wearing a short-sleeved brown shirt and brown pants. This matched the clothing worn by the defendant Balch later that evening at the time of the defendant's arrest at approximately 10 p.m. When arrested, the defendants were in the same maroon-over-white Chevelle which had been towed from the Rosen driveway and lawn earlier. The search of the vehicle netted the stolen pillow case and silverware.

As we noted, at approximately 10 p.m., Narberth Patrolman Thomas Trolley was patrolling on Montgomery Avenue in Narberth. As he approached the Great American

[ 328 Pa. Super. Page 74]

Pizza Parlor and Arcade, he noticed the defendants Balch and Algeo and another young man, a juvenile, Billy Carlin, walk out and get into the maroon-over-white Chevelle. He knew all of them to be under 21. He saw Algeo carrying a bottle of beer and Billy Carlin carrying a milkshake type container which he suspected contained beer. Trolley confronted the three as they sat in the car. Billy Carlin and the defendant Balch were in the back seat and Algeo was seated in the front seat on the passenger side. [Suppression Hearing. N.T. 22]. Officer Trolley asked them for the beer and at first they denied having any. He then asked them to exit the car which they did and at the time the bottle of beer and the milkshake carton which contained beer were turned over to him. Officer Trolley then entered the vehicle to search for more beer. Upon lifting a green Army fatigue jacket on the front seat, he noticed the pillowcase containing the silverware.*fn1 He inquired where the silverware had come from and received no response. At this point, Steven J. Rotondo emerged from the Pizza Parlor and identified himself as the owner of the car. When asked about the silverware, Rotondo said that his mother had given it to him to pawn. Officer Trolley then reported all this information to his patrol supervisor and was instructed to hold the individuals as burglary suspects. The Lower Merion Police then brought Mr. Crockett to the scene of the arrest and he positively identified the defendant Algeo. He was also able to identify the short-sleeved brown shirt and brown pants worn by the defendant Balch." (Opinion, June 7, 1982, at 2-4.)

Motions to suppress the pillowcase and silverware seized by the police from Mr. Rotondo's car were presented to the trial court on September 29, 1981 on behalf of the Appellants and also on behalf of Stephen J. Rotondo. On September 30, 1981, following a suppression hearing, the ...

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