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COMMONWEALTH v. KUHN (04/18/63)

April 18, 1963

COMMONWEALTH
v.
KUHN, APPELLANT.



Appeal, No. 452, Oct. T., 1962, from judgment of Court of Quarter Sessions of Philadelphia County, June T., 1961, No. 1648, in case of Commonwealth of Pennsylvania v. Joseph H. Kuhn, also known as Joseph F. Barker. Judgment affirmed.

COUNSEL

D.C. Harrison, for appellant.

Burton Satzberg, Assistant District Attorney, with him Charles Jay Bogdanoff, Gordon Gelfond and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Rhodes

[ 200 Pa. Super. Page 650]

OPINION BY RHODES, P.J.

Defendant was tried before a judge and a jury and found guilty on two bills of indictment, No. 1647 and No. 1648, June Term, 1961, in the Court of Quarter Sessions of Philadelphia County, charging larceny and receiving stolen goods. Sentence was suspended on bill No. 1647. The appeal to this Court is from the sentence

[ 200 Pa. Super. Page 651]

    imposed on bill No. 1648 for a term of not less than two years nor more than four years to begin at the expiration of the sentence defendant was presently serving.

In substance, the sole question raised on appeal is whether the Commonwealth's evidence showed the commission of the crimes charged within the applicable statutory period prior to the finding of the indictment. The indictment at No. 1647, on which a true bill was returned on June 26, 1961, alleged the crimes as occurring "on or about May 5, 1959, ... and on divers dates thereafter continuing to and including June 26, 1959." The indictment at No. 1648, returned on June 26, 1961, charged the offenses as occurring on June 26, 1959.

Defendant's preliminary motion to quash the indictments was refused. However, defendant filed no post conviction motions in the court below and did not raise the questions on which he now seeks an adjudication in this Court. It is well settled that matters not raised in the court below will not ordinarily be considered for the first time on appeal. Com. v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530; Com. v. Gomori, 192 Pa. Superior Ct. 325, 330, 161 A.2d 649; Com. v. Clark, 198 Pa. Superior Ct. 64, 67, 181 A.2d 859. In any event, we are satisfied that the Commonwealth's evidence showed the commission of the crimes charged with reasonable certainty and within the applicable statutory period.

At the trial, Milton Shaw, security officer for Progress Manufacturing Company, Philadelphia, testified that the records showed defendant was employed by that company as an electrician from May 5, 1959, to June 26, 1959; that an inventory taken at the plant covering a period from June 1 to December 31, 1959, disclosed over 5,000 units of intercoms and lighting fixtures missing. The Commonwealth called ...


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