Commonwealth v. Wiltrout

457 A.2d 520, 311 Pa. Super. 115, 1983 Pa. Super. LEXIS 2616
CourtSuperior Court of Pennsylvania
DecidedFebruary 25, 1983
Docket990
StatusPublished
Cited by10 cases

This text of 457 A.2d 520 (Commonwealth v. Wiltrout) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Wiltrout, 457 A.2d 520, 311 Pa. Super. 115, 1983 Pa. Super. LEXIS 2616 (Pa. Ct. App. 1983).

Opinions

HESTER, Judge:

On April 18, 1980, the appellant, Edgar Clinton Wiltrout returned from work to his trailer home in Westmoreland County in the early evening with plans to meet friends at [118]*118the Foothills Tavern. Having bathed, and while dressing, his friend, Marion John Steppits arrived to accompany him.

When the appellant was prepared to leave his home, he instructed Steppits to remain until he returned from an errand. The appellant thereafter walked alone to CB City on Route 30, some 500 yards from his trailer home. CB City was located on Route 30, several hundred yards from the Beatty Crossroads. It was a retail enterprise owned and operated by Joseph Poponick; the building itself was owned by the appellant’s brother, Donald Wiltrout, and leased to Mr. Poponick.

Under the pretense of investigating an unauthorized person’s presence on the premises of CB City, the appellant entered the building' through the rear wall after prying open a plywood panel. This occurred following the close of business for the day. A security alarm system summoned Trooper Fred Street of the Pennsylvania State Police to the scene. Upon his arrival, Trooper Street detected inside movement through the glass front doors; thereafter, he skirted the outside and observed the loosened plywood rear panel. A leather valise and hammer were found next to the plywood panel.

Trooper Street returned to the front of the building where he was accosted by the store owner’s mother and Trooper John Mosser. They were both instructed to watch the front of the building while Trooper Street returned to the outside rear portion.

Upon arriving a second time at the point of entry, Trooper Street observed the outside plywood panel being pushed outwardly by the appellant attempting to exit surreptitiously. When Trooper Street identified himself and cautioned the appellant to continue exiting with his hands visibly in front of him, the panel closed and the appellant retreated to the inside.

Trooper Street returned to the front and instructed Trooper Mosser to continue his vigil of the front entrance. Trooper Mark Griffin, the last enforcement officer to ar[119]*119rive, accompanied Street through the rear panel into the building. Once inside, they immediately encountered a group of boxes scattered on the floor. The appellant was not discovered in either the storage or showroom areas. A piece of the suspended ceiling in the showroom was lying on the floor thereby alerting the troopers to the possibility that the appellant was concealing himself above the ceiling; however, a search of that space proved fruitless. The appellant was eventually found partially concealed in the restroom’s suspended ceiling with only his legs and feet visible. He was pulled to the floor and detained by Trooper Mosser while Troopers Street and Griffin checked for any other intruders. No one was found.

Appellant was arrested and charged with burglary. A jury trial commenced on November 10, 1980 and a verdict of guilty was returned. Motions for a new trial and in arrest of judgment were filed, but subsequently denied. On September 1, 1981, the appellant was sentenced to a term of imprisonment of not less than four (4) nor more than ten (10) years. His motion for reconsideration of the sentence was denied and this appeal followed.

Appellant’s first contention is that the trial court erred in admitting into evidence a photograph of the valise and hammer. He alleges that a foundation for the demonstrative evidence was never laid and that such evidence was irrelevant. We disagree with both allegations.

The photograph of the valise and hammer was designated as Commonwealth’s exhibit # 5. Trooper Carl Schweinsburg, a records and identification officer with the Pennsylvania State Police, took this particular photograph, along with others. He testified to having taken photograph exhibit # 5 on April 18, 1980 and to recognizing his handwriting setting forth the incident number, date and initials on the back. Furthermore, Trooper Street, while occupying the witness stand, identified the satchel and hammer depicted in the photograph as items found beside the plywood panel that was ripped from the rear wall of CB City. This [120]*120testimony satisfied the prerequisites for admitting photographs as evidence set for in Adamczuk et al. v. Holloway, et al., 338 Pa. 263, 13 A.2d 2 (1940). Where a witness is familiar with the items photographed and is competent to testify that they are accurately depicted therein, then, if relevant, the photograph should .be admitted. Adamczuk, et al., supra.

The determination of the relevance of evidence is accomplished through a conjunctive test. First, the evidence must affect a matter in issue; secondly, it must render the desired deduction more probable than it would be without the evidence. Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981); Commonwealth v. Stevenson, 280 Pa.Super. 293, 421 A.2d 729 (1980). The prime inquiry confronting the lower court was whether the appellant entered CB City with the intent to commit the crime of theft of movable property. The appellant insists that he entered the building for the alleged purpose, of apprehending a person whom he suspected of entering the building. Moreover, the appellant never disclosed to anyone another intention. Consequently, the issue of intent was determinable only through the use of circumstantial evidence. The satchel raises the inference that the intruder intended to carry citizens’ band radio equipment from the premises. While assisting the jury in comprehending the shape, size, texture and durability of the satchel, the photograph also reflected its capacity to carry such items. Accordingly, it renders the inference of the intent to commit theft more probable. We conclude, therefore, that it satisfies the two-prong relevancy test. Certainly, at the very least, we cannot conclude that the lower court abused its discretion in admitting the photograph. Commonwealth v. Thornton, supra, and Stevenson, supra.

The appellant argues next that the trial judge erred in refusing two points of charge submitted by him. The points of charge submitted, but refused, are as follows:

[121]*1211. The jury must be satisfied beyond a reasonable doubt that Mr. Wiltrout knew the nature of his conduct and it was a conscious object to engage in this conduct, i.e., burglary at the time of entry. 18 P.S. § 302 (sic).
2. If the jury believes beyond a reasonable doubt that Mr. Wiltrout possessed the specific intent to commit a crime other than theft even merely mischief, at the time of entry, and that crime was not proven by the Commonwealth, the jury must aquit Mr. Wiltrout. Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979).

It is the appellant’s position that the above two submitted points for charge raised the subject of intent and should have spurred the court to give a thorough jury instruction on the critical role of intent in a burglary offense.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Lacastro, A.
Superior Court of Pennsylvania, 2021
Com. v. Swift, D.
Superior Court of Pennsylvania, 2019
Com. v. Tavarez, C.
Superior Court of Pennsylvania, 2017
Com. v. Myatt, K.
Superior Court of Pennsylvania, 2014
Commonwealth v. Impellizzeri
661 A.2d 422 (Superior Court of Pennsylvania, 1995)
Commonwealth v. Hindi
631 A.2d 1341 (Superior Court of Pennsylvania, 1993)
Commonwealth v. Tessel
500 A.2d 144 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Wiltrout
457 A.2d 520 (Superior Court of Pennsylvania, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
457 A.2d 520, 311 Pa. Super. 115, 1983 Pa. Super. LEXIS 2616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wiltrout-pasuperct-1983.