418 A.2d 534 | Pa. Super. Ct. | 1980
Sometime after midnight on December 22, 1977, a burglary occurred at Scrafford’s Restaurant in Rush Township, Schuylkill County,j Pennsylvania. Taken in the burglary was 24 lobster tails, 50 steaks, 15 bottles of liquor, 26 bottles of wine, $260.00 in currency and a bar lamp. Subsequent to a State Police investigation, an inculpatory statement was given by Stuart Warne on December 23, 1977. Warne’s
With this information, State Police on December 30, 1977, obtained a search warrant for Yocum’s apartment which was executed the same day. The bar lamp which was taken during the burglary was seized from the apartment. Yocum was then arrested and charged with burglary and receiving stolen property and he gave a statement to police indicating that while the three others came to his apartment with beer, wine, whiskey, lobster tails and steaks with which they had a party, he wasn’t told where it all came from and that he had not been in Scrafford’s Restaurant. On May 18, 1978, Appellant was convicted by a jury of receiving stolen property.
Appellant’s first argument is that testimony given by Plasko and Warne was so conflicting as to be insufficient evidence as a matter of law upon which a jury could base a verdict of guilty. The testimony to which appellant refers is Warne’s testimony that: (1) he was in a card game the night before with the owner of Scrafford’s; (2) the owner had given him the keys to the restaurant; and (3) he was the caretaker of the restaurant for the holidays. In Appellant’s argument, this testimony was in direct conflict and contradiction to Plasko’s testimony, that Warne also said in addition to the above that: (1) he won money from the boss during the card game; and (2) his boss had given him the food and liquor. According to Plasko, Gilas asked Warne about the items and Warne replied that they were left over from a Christmas party the previous night and would spoil anyway.
Even if these statements could be seen as inconsistent, they along with other minor inconsistencies which Appellant points out, do not rise to the level of requiring the court to take the role of the finder of fact away from the jury. As the Commonwealth v. Bartell, 184 Pa.Super. 528, 136 A.2d 166, 172 (1957) states:
“It is true, of course, that a case should not go to a jury where the party having the burden offers testimony of a witness, or of various witnesses, which is so contradictory on the essential issues that any finding by the jury would be a mere guess (citations omitted). However, the mere fact that there are some inconsistencies is not alone sufficient to destroy the case, (citations omitted). The function of a jury is to reconcile conflicting testimony; it is only when the testimony is so contradictory on the basic issues as to make any verdict based thereon pure conjecture that the jury should not be permitted to consider it.”
There was no such contradictory test as to an essential issue presented.
Further, the bar lamp found hidden in the Appellant’s apartment does not seem to qualify as a “leftover” from a Christmas party and as the lower court stated in its Opinion:
“. . . may itself have provided the illumination to the jury through which they were able to find the defendant guilty.” P. 5 Opinion.
The Appellant next argues that the eight days between the burglary and the search of Appellant’s apartment, given the nature of the items taken, made the warrant for the search stale.
Appellant correctly cites Commonwealth v. Jones, 229 Pa.Super. 224, 323 A.2d 879 (1974) as stating the guidelines in determining the “staleness” of a warrant. To be considered is (1) The nature and quality of items to be seized; (2) time lapse and (3) ease with which items may be disposed. Whether these items could be easily disposed of, even if the police are charged with the knowledge that the items would be used for a party as appellant suggests, is succinctly and literally stated by the trial court in its Opinion.
“. . .It cannot be seriously contended that a lapse of seven days from the information of the first informant and one day from the second informant’s information would result in the information becoming stale. There is hardly time for the missing lobster tails and steaks to become tainted let alone information relating to their pilferage. .
. Counsel’s argument presupposes that this veritable cornucopia of epicurean comestibles would be devoured in eight days and that therefore criminal activity ceased to exist or continue. This is toying with the fallacious. Common sense requires us to believe that the items comprising this delectable swag would not all be eaten in slightly over a week, a gastronomic feat worthy of Henry VIII at his best.”
Even the most accomplished partyrgivers would have reason to believe that something of this booty would remain, after even the best of parties.