Com. v. Whalen

• Citation: 189 Pa.Super. 351,150 A.2d 133
• Parties: COMMONWEALTH of Pennsylvania v. Edward WHALEN, Appellant.
• Decision Date: 16 April 1959
• Court: Superior Court of Pennsylvania

Page 133

150 A.2d 133 189 Pa.Super. 351 COMMONWEALTH of Pennsylvania
v.
Edward WHALEN, Appellant. Superior Court of Pennsylvania. April 16, 1959.

[189 Pa.Super. 353]

Page 134

Paul N. Gardner, Philadelphia, for appellant.

James McGirr Kelly, Juanita Kidd Stout, Asst. Dist. Attys., James N. Lafferty, First Asst. Dist. Atty., Victor H. Blanc, Dist. Atty., Philadelphia, for appellee.

[189 Pa.Super. 352] Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

[189 Pa.Super. 353] WRIGHT, Judge.

Edward Whalen and Anthony Perpiglia were tried in Philadelphia County on two bills of indictment as follows: No. 1 March Sessions 1958 charging attempted burglary, and No. 222 June Sessions 1957 charging assault and battery with intent to murder. After a four day trial the jury returned a verdict of guilty as to both defendants. Motions for a new trial were filed and overruled. Perpiglia was sentenced on both bills for a total term of 13 1/2 to 27 years. As to Whalen, sentence was suspended on Bill No. 222 June Sessions 1957. On Bill No. 1 March Sessions 1958, Whalen was sentenced for a term of 7 1/2 to 20 years. From that judgment Whalen has appealed.

Page 135

On May 16, 1957 about 1:30 a. m., a burglary was attempted through the roof of premises at 1305 Germantown Avenue, Philadelphia, owned and occupied by the Monarch Distributing Company. The south side of the Monarch building forms the rear boundary of properties on Thompson Street. Pual Stuhlman, who lives at the corner of Germantown Avenue and Thompson Street, heard unusual noises, saw two figures on the roof of the Monarch building, and called the police. Among other officers, James Armstrong arrived on the scene, saw two figures on the roof, and subsequently attempted to intercept a man running down Thompson Street. Armstrong was shot by this man, identified [189 Pa.Super. 354] by several witnesses as Perpiglia. Other officers apprehended Perpiglia in flight a short distance from the scene. Specimens removed from his clothing and shoes were similar to the material on the roof of the Monarch building. The gun was found in a nearby vacant lot. Mrs. Irene Muller, who lives at 235 West Thompson Street, heard the shot, looked out and saw the figure of a man on the roof of the Monarch building. She then heard the noise of someone climbing down a rear sewer stack pipe located at the junction of the wall of her house with the wall of the Monarch building. This person bumped against the shutters and knocked over the rubbish can as he alighted. Mar. Muller's rear yard is completely enclosed and accessible only by means of an alley which opens on Thompson Street. Entrance to this alley is through a wooden door having an ordinary Yale type lock and a barrel bolt which was in a locked position. When Mrs. Muller reached the street, she heard someone inside the alley trying to open the door. She signaled to Officers Masztak and Selby. The police threatened to shoot through the door if the person in the alley did not give himself...