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09/05/89 the People of the State of v. Walter Pietruszynski

September 5, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WALTER PIETRUSZYNSKI, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

545 N.E.2d 942, 189 Ill. App. 3d 1071, 137 Ill. Dec. 181 1989.IL.1372

Appeal from the Circuit Court of Cook County; the Hon. Jack Welfeld, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Following a bench trial, defendant, Walter Pietruszynski, was convicted of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-1) and sentenced to eight years' imprisonment. On appeal, defendant contends that: (1) the State failed to prove him guilty of burglary beyond a reasonable doubt; (2) the State failed to prove that defendant was statutorily eligible to be sentenced as a Class X offender; and (3) the trial court erred in failing to advise defendant of the possibility of probation if he elects to submit to treatment pursuant to Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 6301 et seq.). For the following reasons, we affirm that part of the trial court's order that found defendant guilty of burglary; reverse that part of the order which sentenced defendant as a Class X offender; and remand the cause for appropriate Class 2 sentencing.

The record sets forth the following facts relevant to this appeal. On January 12, 1986, approximately 3 a.m., Alfred Klingsheim, service investigator for Wells Fargo Alarm Systems, received an alarm from Mrs. Grass, Inc., a manufacturing plant located at 725 S. 25th Avenue in Bellwood. When Klingsheim arrived at the plant, he turned off the alarm, which was coming from the north wall of the plant, and then drove around the plant to see if any doors were open or windows broken. Because there were no visible signs of entry, Klingsheim thought the alarm system had malfunctioned. Klingsheim then entered the building and proceeded to check the various internal doors which were also hooked into the alarm system. He noticed one door had been left unbolted and then heard a noise in the cafeteria that sounded like "steel hitting the cement." When Klingsheim realized there was someone in the cafeteria, he called the police for back up and waited behind a file cabinet in the cafeteria. When the intruder came out, Klingsheim told him to stay where he was. However, the intruder just glanced over his shoulder and ran into the factory area of the plant. Klingsheim described the intruder as a young, white male with black hair, wearing a yellow, waist-length coat, blue trousers and boot-type shoes.

When the intruder ran into the factory area, Klingsheim started to follow him, but stopped because the factory was dark and he did not know his way around there. He noted, however, that the intruder appeared to know his way around the factory. Klingsheim then went toward the front office area, thinking the intruder may have gone that way. At that point, he noticed that the police had arrived. Some of the officers positioned themselves at various places outside the building while two of them accompanied Klingsheim back into the building. Inside, Klingsheim spotted a "piece of metal from the roof inventory" in the manufacturing area and saw a hole in the roof. He also noticed some quarters and a heavy chisel on the floor.

Officer Frank DeGuiseppe of the Bellwood police department testified that approximately 3:30 a.m. on January 12, 1986, he responded to an alarm call at the Mrs. Grass plant. When he arrived at the plant, he exited his car and was standing on the north side of the building when he noticed someone on top of the plant's roof. That person then jumped onto a nearby telephone pole and slid to the ground, landing on his feet approximately five feet from where DeGuiseppe was standing. The person landed with his back toward DeGuiseppe, then turned around and faced him. DeGuiseppe stated that the area was well lit and that he immediately recognized defendant, whom he had known for over 18 years, and yelled, "Wally . . . police!"

Defendant then ran north to his house, located approximately 200 feet away. DeGuiseppe described defendant as wearing a "green type Army jacket," blue jeans and heavy work shoes. DeGuiseppe called for assistance, and when other officers arrived, he stationed himself in front of defendant's three-flat building while other officers went to the back of the building. On cross-examination, DeGuiseppe admitted that he had not mentioned the telephone pole to the grand jury or in his police report.

Officer John Pikrone of the Bellwood police department testified that on January 12, 1986, he was dispatched to Mrs. Grass, Inc., in response to a Wells Fargo guard's request for assistance. When he arrived at the plant, Klingsheim met him and told him that someone was in the building. Pikrone and his partner proceeded to search inside. In the cafeteria, they noticed that several vending machines had been broken and that a trail of change on the floor led into the manufacturing area. In addition, because the floor had some type of flour residue on it, Pikrone observed hiking boot footprints leading into the manufacturing area and ending at a large hopper-type machine which extended to the ceiling. He also observed that the roof vent at the top of the machine was missing.

Pikrone climbed up the machine and outside to the roof. At roof level, he noticed hiking boot footprints in the snow leading from the roof vent to the north side of the building. At that point, Pikrone heard over the police radio that defendant had jumped off the roof. Back on the ground, Pikrone observed hiking boot footprints in the snow leading from the telephone pole to the rear of defendant's three-flat. At the three-flat, Pikrone noticed that the rear entry door to the basement apartment was ajar and there was a light on inside. He then identified himself and pushed open the door. Defendant, wearing a sweater, blue jeans and hiking boots, was standing inside.

Defendant's mother, Antoinette Pietruszynski, testified that on January 12, 1986, approximately 3:30 a.m., she was putting food away in the first-floor apartment after a family get-together in the basement apartment when she heard a dog barking. She called to defendant, who was in the basement apartment, and asked him to bring the dog inside. Shortly after the defendant went outside to get the dog, Antoinette heard some commotion in the basement. When she went out to the back porch, she saw some police officers taking defendant out of the basement apartment and into a squad car. Defendant was wearing blue jeans, a "dago-t" and loafers. Antoinette further stated that there were no outside lights at the Mrs. Grass plant and no streetlights on that side of the street. On redirect, Antoinette stated that when the police took defendant away, he was in his stocking feet and had no shoes.

Defendant testified that on January 12, 1986, approximately 3:30 a.m., he heard his mother's dog barking and went outside to check out the situation. He then noticed a Bellwood police car pulling up behind his three-flat. An officer got out and was walking toward defendant. At that point, defendant noticed that another squad car had pulled up in front of his building and an officer was walking down the gangway toward him. Defendant kept asking the officers what was going on, but neither one would say anything. Suddenly, one of the officers swerved defendant around, kicked him in the back and hit him with a gun in the back of the head. They then handcuffed him and took him to the squad car in front of the house. Defendant stated that he was wearing blue jeans, a "white athletic shirt, and house slippers," and that he had worked at the Mrs. Grass plant for a few months in 1978. On cross-examination, defendant admitted that he knew Officer DeGuiseppe, but denied seeing him on the night of the occurrence.

Thereafter, the trial court found defendant guilty of burglary. At the sentencing hearing, the State argued that defendant's two prior Class 2 convictions made him eligible for sentencing as a Class X offender. The trial court agreed and sentenced defendant to eight years in prison. Defendant's timely appeal followed.

Initially, defendant contends that the State failed to prove him guilty of burglary beyond a reasonable doubt because the State's case was based solely on the doubtful identification and questionable testimony of Officer DeGuiseppe. In response, the State argues that it had presented overwhelming evidence of defendant's guilt.

When the identification of an accused is at issue, the testimony of one witness is sufficient to convict even though that testimony is contradicted by the accused, provided that the witness is credible and that he viewed the accused under circumstances that would permit a positive identification to be made. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153; People v. Robinson (1987), 153 Ill. App. 3d 272, 505 N.E.2d 1144.) The credibility and certainty of a witness' identification are enhanced when the witness testifies that he had known the defendant prior to the occurrence. (People v. Robinson (1987), 153 Ill. App. 3d 272, 505 N.E.2d 1144.) A reviewing court will not substitute its judgment for that of the trier of fact on questions involving either the weight of the evidence or the credibility of the witnesses (People v. Dunklin (1982), 104 Ill. App. 3d 685, 432 N.E.2d 1323), and will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt as to defendant's guilt. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

In the present case, Officer DeGuiseppe testified that on January 12, 1986, approximately 3:30 a.m., he responded to an alarm call at the Mrs. Grass plant. When he arrived at the building, which was approximately two blocks long and 1 1/2 stories high, he exited his squad car and stood on the north side of the building. After approximately five minutes, DeGuiseppe saw a man jump from the top of the building's roof onto a telephone pole and slide down the pole, using the little steps for his hands. The man landed on his feet with his back toward DeGuiseppe, who was standing approximately five feet away. When the man turned around, DeGuiseppe recognized him immediately as defendant and called out defendant's first name and identified himself as the police. Defendant then ran toward his house, located a couple hundred feet away. At the time, defendant was wearing a "green-type Army jacket," blue jeans and heavy work shoes. DeGuiseppe called for assistance and then remained in front of defendant's building. The other officers went to the back.

On cross-examination, Officer DeGuiseppe admitted that he had not mentioned in his police report or at the grand jury hearing that defendant had used a telephone pole to get from the factory roof to the ground. On redirect, Officer DeGuiseppe stated that he had known defendant for approximately 18 years and had seen him numerous times.

Defendant attempts to undermine Officer DeGuiseppe's testimony by stating that because he landed with his back toward DeGuiseppe, then turned around, looked at DeGuiseppe, who was only five feet away, and then fled, there was very little time for DeGuiseppe to have viewed him. In light of the fact that DeGuiseppe has known defendant for over 18 years and recognized him immediately, this argument is unpersuasive. In addition, defendant claims that the discrepancy between DeGuiseppe's testimony and defendant's mother's testimony as to how well lit the area was renders DeGuiseppe's identification unreliable. As stated, credibility of the witnesses is a decision for the trier of fact. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153.) In our ...


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