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COMMONWEALTH v. LIPFORD (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
LIPFORD, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1973, No. 570, in case of Commonwealth of Pennsylvania v. Ralph Lipford.

COUNSEL

Lee Mandell, for appellant.

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 Cercone, J.

Author: Cercone

[ 230 Pa. Super. Page 493]

This appeal arises from a jury verdict finding appellant guilty of larceny. Although appellant had also been charged with burglary and receiving stolen goods, the trial court sustained appellant's motions for directed verdicts on those charges. Appellant contends that the trial court erred in its charge to the jury on the

[ 230 Pa. Super. Page 494]

    elements of the crime of larceny, entitling him to a new trial. Since we find no reversible error in that charge, we will affirm.

The only evidence produced at appellant's trial consisted of the testimony of one Mr. McCabe, a security officer at Lit Brothers' Department Store in Philadelphia. That testimony may be summarized as follows: On February 23, 1973, appellant entered "Lits" through its subway level entrance carrying two "Gimbels" shopping bags partially obscured by a coat which appellant had draped over his arm. Apparently having determined that appellant's conduct was suspicious, Mr. McCabe followed him into the women's shoe department in the store's basement. Appellant remained there for more than twenty minutes before he entered a restricted stock area where inventory was stored prior to its transfer to sales areas in the store. The stock area was demarked by various no trespassing signs in addition to a conspicuous "employees only" sign on the door to that area. Mr. McCabe observed appellant while he was inside that restricted zone filling his shopping bags with approximately $200 worth of merchandise. Mr. McCabe then followed appellant to one of the store's exits where he arrested him.

After cross-examination, appellant's counsel moved for directed verdicts on the charges of burglary and receiving stolen goods. Those motions granted, the only issue submitted to the jury was the larceny charge. The instructions to the jury which, on the facts of this case, were predictably brief, contained the following charge on the crime of larceny.

"Larceny, therefore is the only charge before you. As applied to this case, larceny, means taking merchandise from Lits, not paying for it, and meaning to keep it." At the close of the charge, appellant excepted on the grounds that the element of intent to deprive the owner of his property was not sufficiently explained to

[ 230 Pa. Super. Page 495]

    the jury. That is the argument which he now ...


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