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COMMONWEALTH v. JUSTICE (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
JUSTICE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1973, No. 1331, in case of Commonwealth of Pennsylvania v. Dorsey L. Justice.

COUNSEL

Berel Caesar, with him Rubin, Leib and Caesar, for appellant.

James Garrett, Assistant District Attorney, with him David Richman, Mark Sendrow, and Steven H. Goldblatt, 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 Hoffman, J. Dissenting Opinion by Jacobs, J. Price, J., joins in this dissenting opinion. Dissenting Opinion by Van der Voort, J.

Author: Hoffman

[ 230 Pa. Super. Page 538]

In this appeal, we must decide whether a defendant, the alleged sole participant in the taking of goods from

[ 230 Pa. Super. Page 539]

    a department store, may be convicted in a non-jury trial of receiving stolen goods, after being acquitted of larceny.

As in every appeal from a criminal conviction, the evidence must be read in the light most favorable to the Commonwealth and the Commonwealth be given the benefit of all reasonable inferences arising therefrom: Commonwealth v. Elam, 221 Pa. Superior Ct. 315, 316, 293 A.2d 103 (1972). The evidence shows that on April 25, 1973, Detective Elizabeth Buono observed the appellant in the second-floor men's department of the Gimbels Department Store. She watched the appellant as he took a jacket from one of the racks, stuff the price tags in the sleeve of the jacket, put the jacket over his clothes, and walk toward the escalator. She testified that she then followed the appellant as he proceeded toward an exit door on the main floor. When he was approximately fifteen feet from the door, Detective Buono apprehended the appellant and arrested him. He was subsequently charged with larceny and receiving stolen goods.

On July 6, 1973, appellant was tried in the Municipal Court where he was found guilty on both charges. He took an immediate appeal de novo to the Court of Common Pleas of Philadelphia County, where he was tried by the Honorable G. Fred DiBona, sitting without a jury. Judge DiBona acquitted the appellant on the charge of larceny, but found him guilty of receiving stolen goods. A sentence of two to twenty-three months' imprisonment was imposed. This appeal followed.

In reviewing the evidence, Judge DiBona found incredible the appellant's version of the incident. Appellant had testified that he did take the jacket, but was proceeding to the first floor to arrange for credit terms on the purchase of the merchandise. In its Opinion, the Court reasoned: ". . . [T]here can be little doubt that in removing the price tags from view he

[ 230 Pa. Super. Page 540]

    intended thereby to conceal them, a motive that is further borne out by the fact that he wore the jacket to the ...


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