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COMMONWEALTH PENNSYLVANIA v. MATHEW BULICKI (09/22/86)

submitted: September 22, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
MATHEW BULICKI, APPELLANT



Appeal from Judgment of Sentence April 18, 1986, in the Court of Common Pleas of Montgomery County, Criminal No. 3952-85.

COUNSEL

Douglas M. Johnson, Assistant Public Defender, Norristown, for appellant.

Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.

Cirillo, President Judge, and McEwen and Olszewski, JJ.

Author: Olszewski

[ 359 Pa. Super. Page 84]

Appellant, Mathew Bulicki, was found guilty of loitering and prowling at nighttime, pursuant to 18 Pa.C.S.A. § 5506,*fn1 in a jury trial before the Court of Common Pleas of Montgomery County. Appellant thereafter filed post-verdict motions, which the trial court denied. The Honorable Joseph H. Stanziani subsequently sentenced appellant to six to twelve months' imprisonment. This appeal followed.

Appellant raises two issues on appeal: (1) whether the trial court erred in refusing to instruct the jury on the legal definition of nighttime; (2) whether the jury's verdict was contrary to the weight of the evidence. We find appellant's contentions to be meritless and, consequently, affirm the trial court's decision.

[ 359 Pa. Super. Page 85]

During the early morning hours of September 14, 1985, Mr. and Mrs. Michael Regan were at home, resting in their bedroom. At about 5:50 a.m., Mrs. Regan noticed appellant's van parked outside her home. At about 6:05 a.m., Mr. Regan, upon arising from his bed, noticed an odor of cigarette smoke coming from an open bedroom window, even though neither he nor his wife smoke. Approximately twenty-five minutes later, Mrs. Regan pulled aside the drawn shades of the open window and noticed appellant's face staring into the bedroom. Appellant was subsequently arrested and charged with loitering and prowling at nighttime in violation of 18 Pa.C.S.A. § 5506.

Appellant first contends that the trial court erred in refusing to instruct the jury as to the legal definition of nighttime since the crime of loitering and prowling must occur at nighttime pursuant to 18 Pa.C.S.A. § 5506.*fn2 Pennsylvania has never judicially or statutorily defined nighttime, but appellant's counsel submitted to the trial judge jury instructions encompassing a legal definition of nighttime adopted in another state. The trial judge, however, refused to utilize this proposed instruction; rather, he advised the jury to consider their own experience and common sense in ascertaining what is nighttime. For the three reasons discussed below, we believe the trial court acted properly in refusing to use appellant's proposed jury instruction. The first reason concerns the nature of the judge's jury charge, and the latter two reasons concern the interpretation of the word "nighttime."

[ 359 Pa. Super. Page 86]

First, trial judges have broad discretion in phrasing and formulating jury charges, as well as handling jurors' request for clarification of confusing charges. See Commonwealth Page 86} v. Kidd, 251 Pa. Super. 140, 145, 380 A.2d 416, 419 (1977). In the present case, the trial judge properly instructed the jury to consider its own experience and common sense in determining if appellant's actions occurred at night. In confronting a similar situation, the Ohio Supreme Court noted:

The jury has the right to apply this common experience of mankind to the determination of the time when the breaking and entering was committed. It was within the province of the jury here to conclude that the defendant worked under the cover of darkness, and the facts developed and circumstances surrounding the commission of the ...


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