Com. v. Minor

• Decision Date: 11 April 1974
• Citation: 322 A.2d 717,227 Pa.Super. 343
• Parties: COMMONWEALTH of Pennsylvania v. Robert MINOR, Appellant.
• Court: Pennsylvania Superior Court

Page 717

322 A.2d 717

227 Pa.Super. 343

COMMONWEALTH of Pennsylvania v. Robert MINOR, Appellant.

Superior Court of Pennsylvania.

April 11, 1974.

Application for Allocatur Denied July 2, 1974.

Nino V. Tinari, Philadelphia, Pa., for appellant.

David Richman and Albert L. Becker, Asst. Dist. Attys., Abraham J. Gafni, Deputy Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., and E. Emmett Fitzpatrick, Dist. Atty., for Commonwealth, appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.

PRICE, Judge.

This is a direct appeal by appellant from his conviction of burglary and larceny after a jury trial on March 5 and 6, 1973, and sentencing on July 2, 1973, for burglary, 6 to 23 months in Philadelphia County Prison, and for larceny, 6 to 23 months in Philadelphia County Prison, with the sentences to run concurrently. The issues raised are the sufficiency of the evidence to establish appellant's guilt beyond a reasonable doubt, and whether the verdict was against the weight of the evidence.

Although appellant also raises the question of error in the lower court's charge, his brief concedes that the charge correctly states the law. Further, there were no exceptions taken and the issue was not raised on post-trial motion, and is therefore waived and will not be considered.

It is conceded that appellant at no time entered the building that was burglarized and that he was never in possession of the personal property taken from the building. Appellant was tried as an accessory and conspirator with one Benjamin Mitchell and convicted by jury verdict under proper instructions of the lower court on both charges.

Timely motions for arrest of judgment and for a new trial were made and denied by the lower court by opinion and order filed May 24, 1973.

In determining whether the evidence was sufficient to support the guilty verdict, we accept the Commonwealth's evidence as true, including all reasonable inferences therefrom. Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972). Commonwealth v. Portalatin, 223 Pa.Super. 33, 297 A.2d 144 (1972). So viewed, the testimony will show why the lower court was correct in dismissing appellant's motions and that the verdict was adequately supported. We will affirm the judgment of sentence.

On November 2, 1972, appellant and Benjamine Mitchell were arrested on these charges as well as resisting arrest. ¹ An off-duty Philadelphia police officer whose parents lived in the immediate vicinity of the burglarized premises was sitting in a parked car visiting with his father and observed appellant and Mitchell for a period of time prior to the breakin of the premises, heard conversation between appellant and Mitchell, and observed Mitchell break a panel out of the door. He arrested appellant outside the building and Mitchell existing by way of the broken door with personal property. His testimony establishes that appellant and Mitchell together walked along West Oxford Street from its intersection with Ridge, stopped outside the later burglarized premises known as 2123 West Oxford, and while appellant stood by, Mitchell looked inside through a...