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COMMONWEALTH PENNSYLVANIA v. EDWARD RHODES (02/24/86)

submitted: February 24, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
EDWARD RHODES, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. TIMOTHY COHN, APPELLEE



Appeal from the judgment Entered June 7, 1985 in the Court of Common Pleas of Allegheny County, Criminal No. CC 8408599A.; Appeal from the judgment Entered June 7, 1985 in the Court of Common Pleas of Allegheny County, Criminal No. CC 8408631A.

COUNSEL

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

John H. Corbett, Jr., Public Defender, Pittsburgh, for Rhodes, appellee.

Mark H. Rubenstein, Pittsburgh, for Cohn, appellee.

Olszewski, Hoffman and Roberts, JJ.

Author: Olszewski

[ 354 Pa. Super. Page 25]

This appeal comes before us on behalf of the Commonwealth challenging the decision of the lower court to sustain appellees' demurrer to charges of attempted burglary and possession of instruments of a crime. For the reasons to be discussed, we find it necessary to affirm the judgment and dismiss the Commonwealth's appeal.

In moving for a demurrer, appellees admitted all the facts which the Commonwealth's evidence tended to prove and all inferences reasonably deducible from those facts. Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979); Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976). It was upon this standard that the lower court granted the demurrer and upon which the following facts appear on the record.

On August 9, 1984, police officer Richard Martine of the City of Pittsburgh Police Department was on routine patrol. While cruising Penn Avenue in the downtown section of the City of Pittsburgh at approximately 3:30 a.m., he received a police broadcast over the radio that the Ander's Clothing Store burglar alarm system had been activated. The officer responded to the broadcast, and upon arriving at the store inspected the front door, but did not observe any activity. Officer Martine then drove around the block and entered an alleyway leading to the rear of the building. There he observed two men, one jumping from an oil drum underneath a windowsill, and the other standing next to the oil drum. Defendant Rhodes was identified as the man jumping from the oil drum, and the other man was identified as

[ 354 Pa. Super. Page 26]

    defendant Cohn. (Trial Transcript, pages 4-6). It was also discovered that the fan cover affixed to the building had been removed and the fan blades bent. Neither of the two men had anything in their possession; however, a flashlight, a hammer, and a pair of pliers were found inside a canvas gym bag, zipped closed.

The Commonwealth called as its witnesses two employees of the Allegheny Crime Laboratory, who testified that they had examined and compared dirt taken from the clothes of the defendants with a dirt sample taken from the windowsill of the building. Although they testified that the samples were similar, they were unable to state with certainty that the dirt from the clothes had come from the windowsill. They also admitted that the samples were not "unusual" (Trial Transcript, page 108) and that the dirt on the clothes was similar to soil samples in the area (Trial Transcript, page 86).

"A person is guilty of a burglary if he enters a building . . . with intent to commit a crime therein . . . ." 18 Pa.C.S.A.Sec. 3502(a). "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A.Sec. 901(a). A person is guilty of possessing instruments ...


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