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decided: March 25, 1974.


Appeal from order of Superior Court, Oct. T., 1971, No. 1250, affirming judgment of sentence of Court of Common Pleas of Montgomery County, Sept. T., 1968, No. 232, in case of Commonwealth of Pennsylvania v. Frank Turner.


Daniel C. Barrish, Assistant Public Defender, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Eagen concurs in the result. Mr. Justice O'Brien concurs in the result. Mr. Justice Pomeroy concurs in the result. Mr. Chief Justice Jones dissents. Concurring Opinion by Mr. Justice Roberts.

Author: Nix

[ 456 Pa. Page 118]

Appellant was tried before a judge and jury on charges of burglary, larceny, and receiving stolen goods. A demurrer to the evidence was sustained on the charges of burglary and receiving stolen goods, and the jury found appellant guilty of larceny. Appellant's post-trial motions were denied and he was sentenced to from eighteen months to five years imprisonment. On appeal, the Superior Court affirmed, per curiam. Commonwealth v. Turner, 221 Pa. Superior Ct. 753, 289 A.2d 219 (1972). We granted allocatur and we now reverse.

The instant charges stem from the theft of blank checks from the Arch T. Flower Co. of Wyndmoor, Pennsylvania. The Commonwealth's evidence showed that in mid-February, 1968, it was discovered that checks were missing from the Flower Company and that one of the missing checks had been cashed at a local department store. At the time the stolen check was tendered for payment a photo was taken of both the check and the person seeking to cash the check, and an officer of the Flower Company identified the person in that photo as the appellant, a former employee of the company. On March 29, 1968, armed with this information, the police obtained a search warrant for appellant's apartment and, upon executing that warrant, they discovered six of the stolen checks.

[ 456 Pa. Page 119]

Appellant raises several assignments of error, but the only one that need concern us here is his attack on the validity of the "presumption of larceny from the unexplained possession of recently stolen goods." Unfortunately, courts and legal writers have propounded a plethora of definitions in their attempts to describe the basic characteristic of a presumption. In an attempt to minimize the confusion that may arise from the use of the term we will define with specificity the particular evidentiary device that we are here considering.

It must first be recognized that we are not dealing with a legal presumption. "A legal presumption is the conclusion of the law itself of the existence of one fact from others in proof, and is binding on the jury, prima facie till disproved, or conclusively, just as the law adopts the one or the other as the effect of proof." Tanner v. Hughes, 53 Pa. 289, 291 (1866). Mr. Justice Agnew classified the type of evidentiary principle that we are now considering as a presumption of fact and defined it as merely "a natural probability". Tanner v. Hughes, supra. In making the same distinction, Mr. Justice Eagen stated: "The main difficulty with this position is that appellant confuses an inference with a rebuttable presumption. A rebuttable presumption is a means by which a rule of substantive law is invoked to force the trier of fact to reach a given conclusion, once the facts constituting its hypothesis are established, absent contrary evidence. An inference is no more than a logical tool enabling the trier of fact to proceed from one fact to another, if the trier believes that the weight of the evidence and the experiential accuracy of the inference warrant so doing." Commonwealth v. Shaffer, 447 Pa. 91 at 105-106, 288 A.2d 727, 735 (1972). McCormick on Evidence states: "Certainly the description of a presumption as a rule that, at a minimum, shifts the burden of producing evidence is to

[ 456 Pa. Page 120]

    be preferred, . . . Inferences that a trial judge decides may reasonably be drawn from the evidence need no other description, even though the judge relies upon precedent or a statute rather than his own experience in reaching his decision. In most instances, the application of any other label to an inference will only cause confusion." McCormick, Evidence, 803-4 (2d ed. 1972).*fn1

The authors proceeded to reason that a presumption as they defined the term would be offensive to the presumption of innocence in criminal cases.*fn2 They maintain that although legal draftsmen still retain the term presumption in criminal law, it in fact refers only to a standardized inference. Thus, the total effect of the type of device at issue in this case is to permit the finder of fact to accept the existence of the presumed fact but not require them to do so even in absence of contrary evidence.

The value of such a standardized inference is that it permits the fact-finder to rely upon precedent to find the relationship between the proved facts and the fact to be inferred rather than to rely solely on their collective experience. In evaluating the need for and propriety of a standardized inference we should weigh two distinct factors: (1) whether, in light of present day experience, the proven facts bear sufficient relationship

[ 456 Pa. Page 121]

    to the fact to be inferred;*fn3 and (2) whether the rational connection inherent in the inference is of such a nature that standardization is desirable.

In evaluating the inference in the case at bar, historical acceptance of the nexus between recent possession of stolen property and the identity of the thief,*fn4 while persuasive, is not conclusive. We must still determine whether present-day experience continues to attest to the relationship between the facts proved and the fact to be inferred. The advent of densely populated communities, revolutionary advances in communication and transportation, the increased mobility which produced a more transient pattern of living for large segments of our society, and the myriad of other changes in the nature and character of our society have combined to create the need to redefine the term

[ 456 Pa. Page 122]

"recent possession" in an attempt to preserve its rational connection to the identity of the thief. Recent decisions have attempted to formulate criteria for the term "recent possession"*fn5 that would correspond to a period of time within which a thief could not have had the opportunity to divest himself of possession. See, Commonwealth v. McFarland, 452 Pa. 435, 308 A.2d 592 (1973); Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972).*fn6

As a result of these developments, we have moved away from the generally understood meaning of the words recent and possession and developed a term of art which represents a judgment that the factual circumstances in a given case surrounding the possession justify the conclusion that the possessor is in fact the thief. Because each case is dependent upon the peculiar circumstances involved, it is difficult to perceive how earlier precedent can serve any meaningful purpose. Thus, one of the basic considerations for establishing a standardized inference is not present.

In view of the absence of any real value of precedent in making the judgment of "recent possession" and also a recognition that this judgment cannot be made without a determination of the relationship between

[ 456 Pa. Page 123]

    the time of possession and the likelihood that the possessor is the thief, the utility of the inference is subject to serious question.

It is difficult to find justification for directing the jury's attention away from the ultimate determination by employing the use of an evidentiary device which fails to simplify the inquiry and in many instances requires the same judgment as would be required if the fact-finder addressed the ultimate issue.

The evidence in this case illustrates the disutility of the evidentiary device in question. The use of the inference served to segregate the fact that appellant had been found in possession of the stolen checks prior to the discovery of the theft by the owner from the other evidence offered to establish the guilt of the accused. It is this failing that requires the award of a new trial. We are satisfied that a finding of guilt would have been justified if it were based on all of the evidence produced by the Commonwealth.*fn7 Relying on the inference, the trial court erroneously, under the facts of this case, instructed the jury that they could infer guilt from the evidence of the appellant's possession alone. Proof that the appellant was in possession of a portion of the stolen goods four to six days prior to the discovery of the loss, in absence of any proof of the actual time of the taking, fails to provide the rational connection to the crime charged that would overcome the presumption of innocence and establish guilt beyond a reasonable doubt. Thus, this case provides an excellent

[ 456 Pa. Page 124]

    example where the ill-advised use of the inference rather than facilitating proof of larceny accomplished the opposite result. Clearly, the most efficacious approach would have been to instruct the jury to review all of the evidence and determine whether the Commonwealth had established appellant's guilt of larceny.

Judgment of sentence reversed and a new trial is granted.


Judgment of sentence reversed and new trial granted.

Concurring Opinion by Mr. Justice Roberts:

Without hesitation, I concur in the result reached by the majority today. And I wholeheartedly agree with the majority's opinion to the extent that it holds unconstitutional*fn1 a presumption or inference*fn2 permitting

[ 456 Pa. Page 125]

    the conclusion that either proof of the crime charged or one of its elements has been established, unless the presumption or inference ensures that the presumed or inferred fact will follow beyond a reasonable doubt from the proved facts.*fn3

[ 456 Pa. Page 126]

My approach is only slightly different. In this criminal case, the inference used by the trial court*fn4 sought

[ 456 Pa. Page 127]

    to establish from appellant's unexplained possession of recently stolen goods that appellant was the thief. In other words, the inference was used to show that appellant was guilty of larceny, the crime charged. The constitution requires that no person be convicted of a crime unless he is proved guilty beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-65, 90 S. Ct. 1068, 1071-73 (1970).*fn5

Here, as the majority concludes (and I agree), the inference that the possessor of recently stolen property is the thief does not satisfy the reasonable doubt standard.*fn6 Because appellant's conviction rests upon use of

[ 456 Pa. Page 128]

    an unconstitutional inference, the judgment of sentence must be reversed and a new trial granted.

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