*1 cannot record we facts, only to view sponsibility trial court’s written opinion assertions tbe accept other given instruction was doubt reasonable record. in the appears the reasonable doubt impact Because of of a defendant’s resolution has on the ultimate standard of an essential portion the omission or innocence, guilt appellant doubt deprived on of a reasonable charge to a new is entitled appellant Accordingly, a fair trial. trial. of Common of the Court of sentence
The judgment is reversed, of Philadelphia Pleas a new trial. granted dissents. Jones
Mr. Chief Justice Appellant. Commonwealth v. Turner, *2 Argued November 1972. Before Jones, C. J., Eagen, Nix O’Brien, aud Mander- Roberts, Pomeroy, JJ. INO, for Defender, Public Assistant Barrish,
Daniel G. appellant. Attorney, J. Assistant District
Stewart Greenleaf, Attorney, Assistant District him J. David Bean, Attorney, District T. First Assistant Nicholas, William for Common- 0. District Moss, Attorney, and Milton appellee. wealth, March 1974:
Opinion Justice Nix, Mb. and on before a judge tried was Appellant receiving stolen of burglary, larceny, charges sustained on to the A goods. demurrer burglary receiving goods, the charges guilty larceny. Appellant’s the jury found he denied and was sentenced motions were post-trial *3 On months five years imprisonment. from eighteen per Court curiam. Com- the Superior affirmed, appeal, A. Ct. Turner, Superior monwealth and now We allocatur we granted 2d 219 (1972). reverse. from the theft of blank charges stem
The instant Co. Arch T. of Wyndmoor, from the Flower checks Commonwealth’s evidence showed Pennsylvania. was that in discovered that mid-February, it from the Flower missing Company checks were checks had a one of the been cashed at missing that store. At the time the stolen check department local a photo taken payment tendered for was of both and the to cash the person seeking check, the check Company of the Flower identified the an officer person a former appellant, as photo of employee March 29, On armed with this company. obtained a police search warrant for information, apartment and, upon executing that war- appellant’s of six the stolen discovered checks. they rant, but of assignments error, several Appellant raises attack is his here tbe that need concern us only one from larceny on of the “presumption the validity stolen goods.” unexplained possession recently pro- have writers legal courts Unfortunately, pounded attempts a their plethora definitions describe the basic characteristic presumption. arise to minimize the attempt may confusion we define specificity the use of the term will here evidentiary device that we are particular considering.
It
recognized
must first be
that we are not dealing
with a legal
“A
is
presumption.
legal presumption
conclusion
itself of the
one
law
existence of
from others in
binding
and is
on the
proof,
jury,
prima facie till
or
disproved,
conclusively,
just as
law
the one or the other
adopts
as the effect
proof.”
Tanner v.
Pa.
Hughes,
Mr.
Justice
Agnkw classified the
type
evidentiary
principle
that we are now
as a
considering
presumption of fact
and defined it as
“a
merely
natural
Tan
probability”.
ner v.
supra.
Hughes,
making
same distinction,
Eagen
Mr. Justice
stated: “The main difficulty with
this position is
confuses an inference
awith
presumption.
rebuttable
A rebuttable presump
tion is a
means
rule of substantive
is
law
invoked to force the trier of fact to reach a given con
once the
clusion,
facts constituting its hypothesis are
absent
established,
contrary evidence. An
*4
no more than a logical tool
the
enabling
trier
to
of fact
proceed
one
to another,
the trier believes
from
fact
if
the
the evidence
weight
and the experiential
of
the
accuracy
warrant
so doing/’ Common
of
inference
wealth
The authors the to tion the term would be offensive as defined they They in criminal cases.2 of innocence presumption draftsmen still retain maintain that although legal in in fact only it refers term criminal presumption law, total of inference. effect to a Thus, standardized in case is to permit device issue this type accept to existence presumed finder fact them to do even absence of require fact but not so evidence. contrary it a inference is that value such standardized fact-finder to find
permits rely upon precedent to facts and the fact relationship between rely rather than to on their collec- solely to be inferred the need for experience. evaluating pro- tive inference we should two weigh a standardized priety of present distinct (1) whether, light day factors: facts bear sufficient relation- proven experience, text, In Ms first edition of this McCormick used the term presumption” “permissive describe rule of this law. It was concept opinions “pre noted also described in as a McCormick, supra, sumption fact”. n. 31. shifting producing “A the burden true evidence to the in a criminal ease would mean that defendant court would be against compelled regard to find him to direct to the presumed if he fails to introduce sufficient on issue peremptory ruling against ., or verdict . . directed the accused single case, crime, even as to a in a criminal element of the p. Id. the criminal law.” 804. abhorrent
121
whether
inferred;3
(2)
to be
to the fact
ship
is of
inference
such
in the
inherent
rational connection
is desirable.
a nature that standardization
his-
at bar,
the case
evaluating
posses-
recent
the nexus between
acceptance
torical
thief,4
of the
identity
sion
property
de-
still
while
is not
“We must
persuasive,
conclusive.
termine
continues
to
experience
present-day
whether
to
attest
the facts
relationship between
the fact
densely
be inferred. The advent of
popu-
to
lated
advances in commu-
revolutionary
communities,
nication and
the increased mobility
transportation,
a
produced
more transient
for
pattern
living
large segments
our
and the
myriad
other
society,
in the
changes
nature and character of
society
our
have
combined to create the need to redefine the term
3
assessing
factor,
apply
this first
must
we
least
a
“more-likely-than-not”
States,
standard. Turner v. United
U.S.
396
(1970) ; Leary
States,
(1969).
398
v. United
As a result of these of the meaning the understood away generally from a term of and developed recent and possession words cir- that the factual art represents judgment the surrounding possession in a given cumstances case in fact the that the is possessor the conclusion justify the upon peculiar thief. each case is dependent Because perceive it is difficult to how circumstances involved, purpose. earlier can precedent any meaningful serve one of the considerations for establishing basic Thus, a standardized inference is not present.
In view of the absence of
real
prece-
value
in
the
making
judgment
possession”
dent
of “recent
also a
that
this
made
recognition
judgment cannot be
without a determination
of the
between
relationship
5 Although
ease,
not an
under
issue
facts of
the term
the
this
“possession” has received its share of attention in the recent deci
See,
Davis,
11,
sions of this Court.
Commonwealth v.
444 Pa.
280
(1971) ;
Russell,
4,
A. 2d 119
Commonwealth v.
444 Pa.
A. 2d
279
(1971) ;
Tirpak,
534,
v.
Commonwealth
A.
441 Pa.
2d
(1971) ;
Whitner,
v.
Commonwealth
444 Pa.
It is difficult away jury’s determination from the ultimate attention evidentiary by employing device which use many simplify inquiry re- in instances fails to required quires judgment if the would be the same as issue. fact-finder addressed the ultimate disutility The this case illustrates the evidence evidentiary question. the in- device use of segregate ference served to had prior been found in stolen checks discovery the theft owner the other guilt offered to establish of the accused. failing requires It is this the award of new trial. finding guilt We are satisfied that a have would *7 justified been if it all were based on of the evidence produced by Relying the Commonwealth.7 on the in- erroneously, the trial ference, court under the facts they guilt this case, instructed the that could infer appellant’s possession from the evidence of the alone. possession portion Proof the that inwas of a goods days prior of the stolen four to six to the discov- ery any proof of the in loss, absence of of the actual taking, provide of the time fails to the rational con- charged nection to the crime that would overcome the presumption guilt beyond of innocence and establish provides reasonable doubt. Thus, this case an excellent 7 In addition to possession” the evidence of “recent the Com prove monwealth introduced evidence to the thief was a person who was aware of the existence and the location of these prior taking. They checks to the person also showed that taking the checks was familiar with the names of the officers by Company sign authorized them. evidence, coupled This appellant’s with the prior and the association business, finding with guilt would warrant use ill-advised where example accomplished larceny facilitating rather ap- efficacious most Clearly, result. the opposite to review the jury instruct been to have would proach Common- whether determine the evidence all of larceny. guilt appellant’s had established wealth trial and a new reversed of sentence Judgment granted. Eagen in result. concurs
Mr. Justice
in the result.
concurs
Mr. Justice
O’Brien
Pomeroy
in the result.
concurs
Mr. Justice
Jones dissents.
Mr. Chief Justice
by
Concurring
Opinion
Roberts:
Mr. Justice
reached
in
I
the result
concur
hesitation,
Without
I wholeheartedly
agree
And
by
majority today.
it holds
the extent
majority’s opinion
inference2 permit-
or
presumption
unconstitutional1
compelled by
process clause. U.S.
This conclusion is
the due
Const,
reached under
amend. XIV. The same result
be
would
Pennsylvania
I, section 9 of the
Constitution.
article
majority’s
I
treat
am constrained also to comment on
presumptions
ment of the differences
and inferences. As
between
knowingly
logic
majority
explains,
there are several reasons
history
differently
treating presumptions
for
from inferences.
my
However,
view,
them
there is no
between
when
difference
constitutionality
of their use is tested.
presumptions
The notion
there is
distinction
between
purpose
determining
for the
inferences
their
whether
use
process
repudiated
affords
accused
Barnes v. United
due
(1973). There,
412 U.S.
125 the crime proof either conclusion that tbe ting established, has been elements or one of its charged ensures or inference unless the presumption a reason- beyond or inferred follow presumed will able doubt from facts.3 Shaffer, v.
It is true that the
in Commonwealth
447 Pa.
result
ground
91,
(1972),
justified
that,
inferences measured other standard than reason- only doubt, step deciding able serves as the first toward whether charged inference is valid. If an a crime or an essential depends upon inference, element of a crime then that inference guarantee beyond must a reasonable doubt inferred that follows facts. following The trial court instructed in the fashion: unexplained possession recently property “The stolen you [appellant], the defendant if find as a fact that he did have possession give thereof, jury’s can rise in the mind to an inference thief, was but such he is an fact and not of unexplained from appellant’s to establish thief. In was the recently goods that ap- to show inference was used other words, charged. the crime larceny, pellant guilty aof no be convicted person constitution requires *10 a reasonable beyond unless he is guilty crime 90 S. Ct. doubt. re 358, 361-65, 397 U.S. Winship, 1071-73 1068, (1970).5 I
Here, (and agree), as the concludes majority inference that property stolen possessor recently is the thief does not the reasonable doubt stand- satisfy ard.6 Because rests use of appellant’s upon conviction you law, pass upon part against must it as defendant. “You cannot draw such an inference that defendant was you conclude, assurance,
thief unless can substantial likely proof such inferred fact is more than not to from the flow of his of the checks.” jury permissible From this instruction the could have believed it appellant only likely to convict if satisfied it was “more than Although not” that was thief. the trial did court ad jury compelled appellant guilty monish the that was it find be yond doubt, challenged quite possibly reasonable instruction jury proof. could have induced to eonvict on a lesser standard of practical challenged The of the effect instruction towas submit the theory. case, ease on an alternative In such a if unconstitutional, judgment the theories are must sentence be Leary 6, 31-32, reversed. See v. United 395 U.S. S. 89 Ct. 1532, (1969) ; Stromberg California, 1545-46 U.S. 283 S. 51 Ct. (1931). protects against “[T]he Due Process Clause the accused con except upon proof beyond every viction a reasonable doubt of necessary charged.” to constitute the crime with which he is Winship, 358, 364, re 397 U.S. 90 S. Ct. See majority opinion. note 3 of Shaffer, 91, 116-17, See Commonwealth v. 288 A.2d (1972) (Pomeboy, T., concurring dissenting). possessor recently goods inference that was the thief goods agree of those was at issue in I with the Shaffer. views stat Pomeboy. ed Mr. there Justice found He “it difficult to believe sen- the judgment inference, an. unconstitutional trial granted. and a new be reversed must tence possessor likely himself not that more . . . that it is equivalent thief, inference] . . . is the [the or that . . . the [larceny].” beyond Id. at elements of doubt of the a reasonable dissenting opinion). (concurring If A.2d at 741 “more-likely- stringent requirements less conform to the cannot satisfy necessarily test, the reasonable fail to then it must than-not” supra. note 3 See standard. doubt Appellant. v. Alston, Commonwealth