Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 2033, in case of Commonwealth of Pennsylvania v. Floyd Sheppard.
Leonard Sosnov and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Albert L. Becker and David Richman, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Van der Voort, J.
[ 229 Pa. Super. Page 44]
This appeal from a judgment of sentence, entered after a non-jury trial on charges of burglary, larceny, and receiving stolen goods, challenges the conclusions drawn by the trier of fact from the appellant's possession of a recently stolen automobile.
On the evening of September 5, 1972, two Philadelphia police officers spotted a 1968 Mercury Cougar parked the wrong way on a one-way street. The interior light of the vehicle was on and two men were seated inside. As the officers approached the vehicle from the rear, the two occupants jumped out of the car and ran off; but both were apprehended at gunpoint. Neither the appellant nor the other individual could produce any evidence of ownership of the vehicle or explain their activities. Reacting to these circumstances, the officers took the pair into custody pending further investigation.
The next morning it was learned that the vehicle had been stolen along with other items,*fn1 including another car, from the John B. White Ford dealership in Philadelphia. The company's service director identified the Cougar automobile by serial number at the police station. The other automobile was later found and also returned, but the other items were never recovered.
After presenting the above evidence at appellant's trial, the Commonwealth rested its case. The defense offered no evidence and demurred to the burglary
[ 229 Pa. Super. Page 45]
charge. In response to the demurrer, the court stated: "He is in possession of recently stolen goods. Of course, the defense didn't overcome that presumption." Defense counsel: "I understand." The Court: "So, therefore, we are adjudging him guilty."*fn2 [N/T 18-19]
The once well-established law of Pennsylvania, that the possession of recently stolen property raises a presumption of knowledge that the property had been stolen and a presumption that the possessor is the thief, is no longer the law of this Commonwealth. See Commonwealth v. Owens, 441 Pa. 318, 271 A.2d 230 (1970). As the Owens case and its progeny make clear, a court is permitted, at most, to employ an inference to enable the trier of fact to proceed from one fact to another. The inference of guilty knowledge or of guilt of theft "is simply a result that the triers of fact are permitted to reach based on the evidence." Commonwealth v. Shaffer, 447 Pa. 91, 107, 288 A.2d 727, 736 (1972) (emphasis by court). Such an inference "must satisfy due process standards in light of present day experience," Barnes v. United States, 412 U.S. 837, 844-845 (1973), and is clearly distinguishable from a presumption. Whereas "[a] rebuttable presumption forces the defendant to come forth or suffer inevitable defeat on the issue in controversy, [a]n inference . . . does not put the defendant in such a position. It does not shift the burden of going forward with the evidence . . . . [It] does not shift the burden of persuasion ...