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Commonwealth v. Magliocco

Evidence was insufficient to sustain conviction for possession of instrument of crime because Commonwealth did not produce evidence concerning frequency of use of a baseball bat as an instrument of crime; since appellant was specifically acquitted of underlying offense of terroristic threats, he could not be convicted of crime of ethnic intimidation.

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OPINION

� 1 Appellant, Eric J. Magliocco, brings this appeal from the judgment of sentence to serve a two-year term of probation, imposed after the trial judge, sitting without a jury, found him guilty of ethnic intimidation and possession of an instrument of crime. We are compelled to reverse the judgment of sentence.

� 2 On July 7, 1999, ten-year-old Fatima Smith and her cousin Tamara were passing appellant’s residence on the 1300 block of South Carlisle Street in Philadelphia. Fatima was on her bicycle and Tamara was walking. Appellant, an adult, was standing on his porch, and shouted a racial epithet at them. He then went into his house and got a baseball bat. He came back outside and continued to yell at the girls, using both profanity and racial epithets. At one point, as he was waving the bat at them, he stated that he was going “to make sure that there were no more n—–s who live on this block.”

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