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COMMONWEALTH v. OWENS (11/12/70)

decided: November 12, 1970.

COMMONWEALTH
v.
OWENS, APPELLANT



Appeal from order of Superior Court, April T., 1969, No. 193, affirming judgment of sentence of Court of Common Pleas of Allegheny County, April T., 1967, No. 50, in case of Commonwealth v. Thomas Lee Owens.

COUNSEL

Michael A. Donadee, for appellant.

Carol Mary Los, Assistant District Attorney, with her Robert L. Campbell, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Mr. Justice Pomeroy dissents. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen joins in this dissenting Opinion.

Author: Roberts

[ 441 Pa. Page 320]

It has been the law in the criminal courts of Pennsylvania that a defendant's unexplained possession of recently stolen goods is sufficient proof of his guilt of the crime of receiving stolen goods. Although the statute defining that crime provides as an express element that the defendant knew or had reason to know that the goods in question had been stolen,*fn1 it has been reasoned that such scienter may be presumed from evidence of mere possession. Commonwealth v. Pittman, 179 Pa. Superior Ct. 645, 118 A.2d 214 (1955); Commonwealth v. Kaufman, 179 Pa. Superior Ct. 247,

[ 441 Pa. Page 321116]

A.2d 316 (1955); Commonwealth v. Joyce, 159 Pa. Superior Ct. 45, 46 A.2d 529 (1946). We have in the past made reference to this doctrine but have never formally sanctioned it. Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283-84, 206 A.2d 43, 45 (1965) (dictum).

This case raises a serious question as to the continuing validity of this presumption in light of the United States Supreme Court's recent decisions in Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532 (1969), and Turner v. United States, 396 U.S. 398, 90 S. Ct. 642 (1970).

The appellant Owens after trial without a jury was adjudged guilty of receiving stolen goods and sentenced to a term of three years imprisonment. He then filed a motion for new trial which was eventually dismissed for failure to proceed. On November 1, 1967, appellant filed an application to reinstate his motion for new trial and for leave to file a motion for arrest of judgment nunc pro tunc. The application was granted but the motions subsequently denied on their merits on February 11, 1969. The Superior Court affirmed per curiam. We granted allocatur and this appeal followed.

The evidence presented at appellant's trial, viewed in the light most favorable to the prosecution, established the following:

At approximately 11:10 P.M on the evening of January 31, 1967, Dr. Dick Kazin parked and left his automobile on Craft Avenue in the Oakland section of Pittsburgh. Upon returning to the car some twenty minutes later, he discovered one the car's front windows broken and three handguns and two snow tires missing from within.

On February 19, 1967, Lieutenant O'Connell of the Pittsburgh police force went to the grocery store of one Earl Harris armed with a search warrant seeking contraband

[ 441 Pa. Page 322]

    moonshine whiskey. Not only did the search for the moonshine prove fruitful, but O'Connell also found one of the pistols that had been stolen from Kazin less than three weeks earlier. At appellant's trial Harris testified that he had purchased the pistol from appellant for a total price of $30, paying $20 in cash with a balance of $10. In partial corroboration of this story Harris' wife Velma testified that appellant had come into the grocery store seeking payment of the $10 balance and attempting to sell a second pistol which he showed to her at that time.*fn2 Velma Harris admitted, however, that appellant had offered no clue as to how he had come into possession of either of the weapons.

The foregoing is the sum of the prosecution's case.

Appellant testified in his own behalf and admitted having met Harris in prison many years earlier and having seen him on the street several times in the subsequent years. However, he denied any connection with the stolen gun or its sale or attempted sale to Harris. He further denied all of Velma Harris' testimony ...


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