No. 46 E.D. Appeal Docket, 1984. Appeal from the Judgment of the Superior Court affirming the Judgment of Sentence at June Session, 1980, NOs. 940-42 of Philadelphia County, Court of Common Pleas, Criminal Trial Division.
John W. Packel, Donald S. Bronstein, Philadelphia, for appellant.
Robert B. Lawler, Ann C. Lebowitz, Asst. Dist. Attys., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a concurring opinion.
Appellant, Douglas Robinson, was convicted in the Court of Common Pleas of Philadelphia of burglary, criminal trespass, and conspiracy and sentenced to two years on probation. The Superior Court affirmed. 321 Pa. Super. 617, 468 A.2d 853. We granted a petition for allowance of appeal.
Appellant and his co-defendant, Rubeana Coleman, lived together in the second floor apartment of a duplex owned by complainant, Debra Carolina, and her husband. Their relationship with Ms. Carolina was at one time friendly but later deteriorated. They became involved in a dispute, in the course of which they withheld payment of rent. They claimed to have been justified in doing so because of a lack of utility service. As a result of the dispute, they moved out of the apartment in April, 1980.
Debra Carolina was the only witness for the Commonwealth. She testified that on April 3, 1980 at about 7:45 p.m. she went to the duplex as a result of a call she received from her cousin. Upon arriving at the duplex, she found the door to the unoccupied first floor apartment, where she had previously resided and kept personal property, open. Appellant, Coleman, and an unidentified person were coming from the duplex with a couch, gold recliner, and tailormade drapes all belonging to her. Seeing what was occurring, she immediately sought out a police officer whom she found approximately one block from the duplex. After she informed the police officer that a burglary was in progress, the officer told her to go to a certain police station and report it to the detective division. She did so and then returned to the duplex with a detective and two other officers. On returning to the premises, Ms. Carolina found
various items in the first floor apartment missing or destroyed.
The defense gave a different version of events. One defense witness was Purvis Wright, who testified that he and another man helped Appellant and Coleman move out of their apartment in April, 1980. He could not recall the exact date. They began moving at about noon and continued into the evening. The entire job was done in one day. Wright testified that no one went into the first floor apartment and nothing was taken from it. Coleman also testified for the defense and denied that the first floor apartment was entered or that anything was taken from it. She said that all of the moving was done on April 1, 1980 and she was not on the premises on April 3, the date Ms. Carolina claimed the crime occurred.
The Commonwealth's case depended solely on Ms. Carolina's testimony. Her story was pitted against a contradictory version given by defense witnesses. The case had to be decided on the basis of the credibility of the witnesses. Appellant considered Ms. Carolina's testimony incredible in that it was not likely that a police officer, on being told that a burglary was in progress one block away, would tell her to go to the police station. The police officers who allegedly did go to the scene should have appeared to corroborate Ms. Carolina's testimony. Ms. Carolina was asked the name of the detective. She said she did not know it. That kept the defense from checking her story by inquiring of the police. Ms. Carolina's credibility was further weakened by a discrepancy in her testimony concerning the couch that was allegedly taken. On direct examination, she testified that she saw the couch being taken from the apartment on her arrival at the scene. On cross-examination, she testified that when she went into the apartment with the police, the couch was ...