Commonwealth v. Maybee
239 A.2d 332
Pa.
1968
Check Treatment

Opinion by

Mr. Justice Roberts,

It has long been, fundamental to the criminal jurisprudence of this Commonwealth that a necessary predicate to any conviction is proof of the corpus delicti, i.e., the occurrence of an injury or loss and someone’s criminality аs the source of this injury or loss.. See Commonwealth v. Burns, 409 Pa. 619, 627, 187 A. 2d 552, 556-57 (1963); Commonwealth v. Turza, 340 Pa. 128, 133, 16 A. 2d 401, 404 (1940). Although the corpus delicti may be proven by circumstantial evidence, see Commonwealth v. Homeyer, 373 Pa. 150, 94 A. 2d 743 (1953); Commonwealth v. Gardner, 282 Pa. 458, 128 Atl. 87 (1925), the сircumstantial evidence employed must be admissible evidence. The present controversy concerns the application of these principles.

Frank Maybee and James McCray were convicted in November of 1965 by a judge sitting withоut a jury and ‍​​‌‌​‌​‌‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌‌‌‌‌​‍received two concurrent sentences of 2 to 4 years for burglary and larceny. These convictions were af *224 firmed without opinion by the Superior Court and a petition for allocatur was then filed. This petition is granted, the order оf the Superior Court is reversed and the judgment of sentence of the Court of Oyer and Terminer of Allegheny County is reversed.

The tоtality of the Commonwealth’s case consisted of testimony of four police officers. 1 Appellants contend, аnd we agree, that the admissible testimony was insufficient to prove the corpus delicti for the testimony concerning the оwnership of the allegedly stolen goods was hearsay. Thomas Prendergast, Chief of Police of the Borough of Sewickley, testified that on the morning of May 21, 1965 two men reported that their automobiles, parked in the lot of the Sewickley Inn, had beеn burglarized. According to Prendergast, these two men gave the Sewickley Borough police a list of the items taken which was broadcast to the various police departments in the surrounding area. Some time later a call was recеived from the Moon Township police that they had two men in custody who had been driving an automobile containing clothing which matched the list earlier broadcast. Prendergast further testified that the owners of the burglarized vehicles subsequently identified thе clothing as theirs.

The second of the four officers, Police Lieutenant Prank Tyler of Moon Township, testified that he was “staked-out” at the Howard Johnson Motor Inn when a white 1959 Chrysler pulled into the motel parking lot ‍​​‌‌​‌​‌‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌‌‌‌‌​‍and, upon noticing a policе car parked in the lot, immediately returned to the highway. A 100 mile per hour chase ensued; approximately four miles from the motel the Chrysler’s engine caught fire and the vehi *225 cle’s two occupants, identified by Tyler as appellants, fled. Although Tyler was unable to apprehend appellants, he testified that he observed a considerable amount of clothing on the back seat of the Chrysler. Patrolman Prank Schramm of Robinson Township testified that he subsequently arrested Maybee and Officer Joseph Pantuso of Collier Township said that he arrested McCray. 2

Two Superior Court cases have considered a similar problem and well delineate the controlling considerations. In Commonwealth v. Gold, 155 Pa. Superior Ct. 364, 38 A. 2d 486 (1944), defendant was charged with larceny. One Cans, a police officer, testified that the owner of the allegedly stolen property (Goldsmith) had identified the proрerty as stolen. However, at trial Goldsmith insisted that the goods could have been stolen but that it was equally possible that defendant had purchased the items from either his (Goldsmith’s) or another store. The Superior Court, holding that the Commonwealth had failеd to prove the corpus delicti, stated (supra at 369-70, 38 A. 2d at 488-89) : “This is not the case of proof solely upon circumstantial еvidence which we have frequently upheld, but a clear case of failure of the Commonwealth to prove the оwnership of the articles alleged ‍​​‌‌​‌​‌‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌‌‌‌‌​‍to have been stolen or received. . . . [T]he proof did not establish the allegations of the indictment that the goods were the property of the Supply Company, or who was the real owner.” Commonwealth v. Cohan, 177 Pa. Superior Ct. 532, 111 A. 2d 182 (1955) was а prosecution for receiving stolen goods. Although the owner of the stolen items did not testify, the thief did and stated that he sold thеse items to defendant. Cohan contains the following explanation of Cold (supra at 539, *226 111 A. 2d at 185-86): “That the property was stolen is an element of the crime which mnst be proven by the Commonweаlth. -But the owner is not the only person who can establish it.

“The point of the Gold case is not that the owner mnst identify the goods as having been stolen, but that if there is no evidence that thе goods were stolen there chn be no conviction for ‍​​‌‌​‌​‌‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌‌‌‌‌​‍either larceny or receiving stolen goods.” (Emphasis in originаl.)

We believe it clear that the present ease falls on the Gold side of the line. The testimony of officers Tyler, Schramm and Pantuso contains not one line in any way indicating the ownership оf the allegedly stolen items and the Commonwealth mnst therefore rest solely on the events recited by Chief Prendergast. The bulk of Prendergast’s testimony, however, consisted of inadmissible hearsay, and was objected to as such by appellants’ cоunsel at trial. Thus, Prendergast’s recitation that he was told by two men that their vehicles were burglarized, that he received a radio message from Moon Township that an automobile had been captured containing clothing and that these two car owners later told him that the recovered clothing was theirs was inadmissible. 3 The Commonwealth’s evidence on the issue оf ownership is thus identical with that contained in ■ Gold and consisted of hearsay that a third party told the testifying officer that the items wеre theirs. Absent any demonstration through admissible evidence that the clothing was stolen, the- corpus delicti was not provеn and these convictions must be reversed. However, we may not grant a motion in arrest of judgment on a diminished record, seе, e.g., *227 Commonwealth v. Tabb, 417 Pa. 13, 207 A. 2d 884 (1965), and therefore only a new trial is granted.

The petition for allocatur is granted, the order of the Superior Court is reversed, the judgments of sentence ‍​​‌‌​‌​‌‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌‌‌‌‌​‍of thе Court of Oyer and Terminer of Allegheny County are reversed, and new trials are granted.

Notes

1

Although, the Commonwealth's case did Includе statements allegedly made by appellants, these statements can play no role in our determination of whether the corpus delicti was demonstrated. Commonwealth v. Burns, supra; Commonwealth v. Turza, supra.

2

Appellant’s counsel demurred to the Commonwealth’s evidence but this demurrer was not sustained.

3

Nor is this Court aware of any exception to the hearsay rule permitting admission of the above testimony. Compare Commonwealth v. Maccaglia, 24 Beaver Cty. L.J. 25 (1962).