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COMMONWEALTH v. ALLEN (04/03/74)

decided: April 3, 1974.

COMMONWEALTH, APPELLANT,
v.
ALLEN



Appeal from order of Court of Common Pleas of Mercer County, Mar. T., 1972, No. 80, in case of Commonwealth of Pennsylvania v. George Allen.

COUNSEL

Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellant.

William J. Rundorff, First Assistant Public Defender, with him John J. Regule, Public Defender, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J.

Author: Cercone

[ 227 Pa. Super. Page 158]

This appeal by the Commonwealth arises from the granting of an order in arrest of judgment by the trial court after the jury had returned a verdict of guilty for receiving stolen goods and conspiracy. The question raised by this appeal is whether the Commonwealth marshalled sufficient evidence to sustain the verdict of guilty by the jury. In making this determination, we are to read the entire record and consider the facts, and all reasonable inferences arising therefrom, in the light most favorable to the Commonwealth: Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). Furthermore, "[t]here is no requirement that either the jury or a Court must believe the accused. The sole requirement is that there be sufficient evidence to justify the jury's verdict. . . .": Commonwealth v. Page 159} Phillips, 372 Pa. 223, 227 (1953).*fn1 The facts of the instant case, under this required construction of the evidence, are as follows.

On the evening of November 10, 1971, Mr. Albert Taub's automobile was broken into while it was parked at Mr. Taub's place of employment. The thieves removed Mr. Taub's checkbook, vehicle registration and driver's license from the glove compartment and fled. The following day, around noontime, the appellee and two other men drove up to the drive-in teller's window at a branch office of Mr. Taub's bank. The car stopped in such a fashion that Allen, a passenger in the rear seat, rather than Carthorn, Allen's co-defendant and the driver of the car, was in a position to carry out the transaction with the teller. Allen then attempted to negotiate a check for $150 which was signed by Albert Taub, endorsed by Albert Taub, and made payable to Albert Taub. All these signatures were forged.

Bank policy required the teller to ascertain the status of the bank account of any stranger who wanted to cash a check for a substantial sum. This routine investigation disclosed that Mr. Taub had reported the checks as stolen. Upon discovering this, the teller jotted down the license plate number of the car and summoned the police.

[ 227 Pa. Super. Page 160]

In the meantime it became obvious to the occupants of the car, who could observe the activities of the teller, that the check was not going to be honored, and they began to drive away. After they had only gone a short distance, the third occupant, later described as Kenneth Smith, jumped from the car and ran away. The appellee and Carthorn then drove to a nearby grocery store where they were apprehended by the police. An ensuing routine search of the car produced the checkbook from above the sun visor on the driver's side of the car. Both defendants expressed ignorance as to how it got there. They also failed to give a convincing explanation of why they left the scene of the crime, stating only that they thought it was a matter between the bank and "Smith."

The pivotal issue in determining the propriety of the order in arrest of judgment is whether under the circumstances of this case the jury could properly infer from Allen's possession of the stolen check and the identification cards belonging to Mr. Taub that he knew they were in fact stolen. We feel such an inference was valid in this case.

The question of whether certain inferences or presumptions may permissibly follow from any given set of proven facts has recently become a source of great controversy in both the federal courts and the appellate courts of this Commonwealth. In Leary v. United States, 395 U.S. 6 (1969), and Turner v. United States, 396 U.S. 398 (1970), the Supreme Court declared unconstitutional federal statutes which created the rebuttable presumption that the defendant ...


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