449 Pa. 358 | Pa. | 1972
Opinion by
In 1969, after waiving trial by jury, the appellant was convicted of assault and battery, aggravated assault and battery, assault and battery with the intent to murder, carrying firearms without a license and receiving stolen goods. On the count of the indictment charging receiving stolen goods, the appellant was sentenced to a term of imprisonment of not less than two years nor more than five years. Sentence was suspended on all other charges. The receiving stolen goods conviction was appealed to the Superior Court and was affirmed per curiam, without opinion. Judge Hope-man filed a dissenting opinion in which Judges Montgomery and Spaulding joined. On January 28, 1972, we allowed an appeal to this Court.
The sole issue presented by this appeal is whether there was sufficient evidence to support a verdict of guilty to the charge of receiving stolen goods. We think not.
In determining the sufficiency of the evidence to support the verdict, we accept as true all testimony and the reasonable inferences therefrom which the jury
At 11:30 P.M. on August 12, 1968, Officer Kelly, a member of the Philadelphia Police Department, and his partner, received a radio call directing them to 32nd and Turner Streets, the scene of the reported shooting. While enroute, they received “flash information” concerning a 1961 Chevrolet believed to be brown and white containing several males. Officer Kelly observed a vehicle meeting this description containing the appellant and his cousin and two ladies. The officer could not recall at trial the appellant’s position in the vehicle when it was stopped and the occupants taken into custody. The color of the automobile that had been stopped by the officers was described as being a “goldish brown”, and was left at the scene of the arrest when the occupants were removed. Later, that vehicle was taken first to Northwest Detective Division and then to North Central Detective Division.
The Commonwealth also offered the testimony of a Mr; Joseph Lafazio that on August 9, 1968, his 1962
At best, the Commonwealth has shown that the vehicle that was stolen from Mr. Lafazio was similar or the same in color, make and year to the vehicle the defendant was in at the time of his arrest. Additionally, the defendant had been observed at some point driving the latter vehicle. Unfortunately, for the Commonwealth, there was not one shred of evidence to establish that the vehicle of Mr. Lafazio was the same as the vehicle in which the defendant was found. Clearly, the Commonwealth’s responsibility to prove this element of the crime of receiving stolen goods beyond a reasonable doubt was not satisfied by the testimony of Mr. Lafazio to the effect that he made an identification of his vehicle at “the police station”.
Recognizing its plight, the Commonwealth in its brief urges this Court, if relief is to be granted, to award a new trial and not arrest judgment. While it is most unfortunate the Commonwealth failed to offer all of the evidence in its possession necessary to establish the charges, this reason does not provide a justification for this Court to refuse the request of the appellant that he be discharged. Under the Act of 1951, June 15, P. L. 585, §1, 19 P.S. 871, where it is determined after a review of the entire record that the evidence is insufficient to sustain the charge, the trial court is mandated to discharge the defendant and dismiss the case. This act does not leave the remedy to
The order of the Superior Court and the judgment of sentence entered in the court of original jurisdiction are reversed and the appellant is ordered discharged.