*1 Rodgers, (1970), 269 A.2d defendants objected jurisdiction to tbe and venue of the court county brought. where the action was The Penn- sylvania Supreme objections Court sustained their brought in held that the action should have an- county. Although, other as reflected the briefs and parties requested none that the case record, proper county, Supreme transferred ruled that “the transferred this court below should have 1006(e).” Id. Pa. R.C.P. action accordance with Accordingly, at instead of dis- at 920. missing pleas court of common should action, county pre- proper if a its own motion transfer it to the objection liminary venue sustained. dismissing appellant’s court Order the lower
complaint to trans- the court is directed reversed, County. fer the case to Bucks Appellant. v. Justice,
Argued June 1974. Before Watkins, J., P. Jacobs, Hoffman, Yan der Cercone, Price, Yoort, JJ. Spaeth,
Berel Caesar, Rubin, Leib for Caesar, appellant.
James Assistant District Garrett, Attorney, Mark H. him David and Steven Sendrow, Riehman, Abraham J. Attorneys, Assistant District Goldblatt, Richard A. District Attorney, Sprague, Gafni, Deputy and F. Emmett Fitz- Attorney, Assistant District First Attorney, appellee. District patrick, Commonwealth, September 23, 1974: J., Hoffman, must decide whether we defendant, In this appeal, talcing goods from participant sole alleged in a store, may convicted trial department non-jury of lar- goods, being acquitted ceny.
As in
from criminal
every appeal
conviction,
evidence must be read
most favorable to
light
the Commonwealth and the Commonwealth
given
all
there-
arising
benefit of
reasonable inferences
from :
Elam,
Superior
We are presented with witness here the appellant testify in an who takes the alone. to leave the proceeds furtive apparently manner, the goods. apprehended store. It is who is Having actor drama. he is short, is difficult acquitted factual basis for legal to envision this Court If to both (a were stolen prerequisite the goods *4 alone could goods), receiving culprit. have been but merely not define, do statutes
Pennsylvania As larceny. 18 offense §4807. proscribe common is “larceny”, held that cases have such, “. . . carrying and consists the mind of another personal away
541 with the specific intent thief, is, deprive owner of his Commonwealth permanently property.” v. Pa. Superior 219 Ct. Lyons, 22, 280 458 18, (1971).
It is likewise settle that has the burden of three distinct elements of the crime proving “ that the are goods: (a) stolen; (b) defendant received such goods; (c) that he received them or reasonable knowing, having cause to were stolen.” Commonwealth v. know, they 280 A.2d Davis, 11, 15, (1971). as the defendant is the sole
Where, here, participant alleged of lar- crime, acquittal necessitates an ceny acquittal on the stolen goods. of sentence
Judgment va- reversed, and the is ordered cated, discharged. Dissenting J.: Jacobs, dissent. respectfully March The Act of I8601 31, As the majority noted, of counts of joining specifically provides in a indictment. single the counts an indictment is utilized, Where such returned on whole can be verdict merge.2 as as proper long and a general indictment If will sustain it. of the indictment one of the counts counts, is found single lar- sentence for disturb a will not as the sen- long property, ceny count. Commonwealth on one imposed tence is A.2d 81 (1969). Pa. Superior Phillips, §24; §411 19 P.S. P.D. of March prop the identical I refer to situations where context Iu this subject offenses. erty of both *5 Since the two merge counts and the defendant can be of no of law or both, inconsistency logic arises if he is and sentenced on one. only that the defendant of the lesser finding stolen an acquittal de- more serious when the way fendant was one accused of no theft, implies that fact finder determined the were not stolen.
The statute under which the defendant was convict- any ed that provides “[wjhoever or receives buys, has, . knowing, . . . which shall been have have cause to know the same to having reasonable finder ... The fact felony.”3 is guilty found that these elements hearing the testimony, have met the most credible would were evidence. a more agree that viewed favorable light a such Commonwealth, strongly supports the evidence Commonwealth, The coincidence that finding. possession in the defendant’s that proving the de- showed that was stolen by was in fact stolen, lar- made out a case of himself and thus also fendant from the fact evidence not detract does ceny, property. supports finding to find the maintains failure majority The the facts presented under fatal inconsistency represents instant case feeling property. the conviction is acquitted because the defendant is, apparently, innocent in fact of totally offense, him. This is not attributed to the conduct committing the ac- to reveal for the facts It is possible case. justifying thus the thief, cused as support also yet charge, more serious repealed Act of June of December 24,1939, P.D. §817; P.D. as amended 18 No, 334, §5 §4817; case can recognize lesser offense.4 such a the law finder circumstances which would cause a mitigating fact hesitate to impose on the more been the long prac- serious has charge. *6 and of the to the finder uphold tice courts fact policy takes of unnamed cir- special extenuating who note convict lesser the elements to a charge, cumstances on by are not the rather supported which even evidence, the letter of the and find inflexibly than to enforce the made out by offense the facts. guilt greatest 304 A.2d 150 Butcher, (1973).5 affirm the sentence.
I would in joins dissenting opinion. Price, J., 4 Superior e.g., Breslin, See, Commonwealth v. Pa. 194 (1960), for A.2d where four defendants were indicted 165 415 larceny property, among things. juryA other charges not the them recognized finding larceny. justified, a The court such could be though necessity to be the evidence would have even which jury support accepted find as true to would also the appear jury that the could “It would not determine verdicts: actually burglaries, the the four had committed and there which anyone guilty although might crimes, to find fore refused 89, 165 at 418. Id. at A.2d done so . well have 5 Although Butcher, Commonwealth v. A.2d 304 involuntary finding manslaughter (1973) a oí where deals support degree in first murder conviction trial a facts present every case, case, I believe that homicide which supported by presents evidence, offense is of the lesser element application argument policy stronger of the ex even an analysis. testimony rule pressed “To that because the in the Court’s recognized which the law has those elements establish to failed reducing legitimate an intentional homicide from basis a voluntary manslaughter degree must murder first consequently discharged would be be vacated completely responsibility our oblivious to form adherence symmetry give way society. at of the law times must 364-65, sought Id. effectuated.” at at 153. policy Dissenting Opinion deb Yan J.: Yoort, of the Opinion dissent from the respectfully dis- in this case and Majority the conviction upsetting Defendant-Appellant. charging the Com- As recited Majority, Defend- proved monwealth that on April 25, and he was seen ant was Gimbel’s Store Department removing from one of the jacket racks, jacket, them in the sleeve placing down his putting proceeding over clothes, on an exit door escalator and walking feet he about apprehended main floor when was charged He from the door and arrested. Municipal 6th he July On he Avas found Philadelphia where Court, Common Pleas On to the charges. *7 a jury. Fred DiBona without G. by Judge larceny him on the charge acquitted Judge DiBona goods. stolen receiving guilty but twenty- more than sentence of not less than two nor sen from which three prison imposed, months holds that majority The followed. tence be acquit he must acquitted because he was say they In effect, stolen receiving goods. ted of of both can be convicted facts he these under alone or of goods larceny stolen receiving (cid:127) solely convicted he cannot be that be the Majority propounds, This goods. so, goods of a in support cause ,the. elements three distinct prove must stolen; the goods That were “(a) viz: crime, of that and (c) goods; Defendant received such That (b) or reasonable having them knowing, he received That stolen”. obvious they that were know cause to proved the Commonwealth case, instant that it that the Defend proved stolen; were that goods proved ant received such received knowing they Certainly, them were stolen. anyone thief than knows better else whether involved were stolen. Majority Judge straight
The holds and must find the Defendant in order find him the crime of deplore Appellate the trend Courts making Judge harsher which the Trial into drives findings might ex- do the wise than he otherwise judgment ercise of instant his and discretion.1 Appellant clearly criminal of- case, every Judge right, power, and Trial had fense, authority made verdict which he to make the goods and I would offense of affirm which he rendered. pronouncement example, De For that on a retrial given more than he received fendant can severe sentence never change circumstances, there the first trial unless occurs a Judge possible making pushes the Trial the severest impose taking away right initially. factfinder pushes Judge or the into one not costs might acquitted finding guilty Defendants who otherwise more they simply pay ordered costs. if could be Appellants. et al., Inc. Triad Distributors, Slott v.