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COMMONWEALTH v. SIMMONS (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
SIMMONS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1973, Nos. 220, 222, 223, and 224, in case of Commonwealth of Pennsylvania v. Marvin Simmons.

COUNSEL

John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Charles A. Klein, 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 Spaeth, J.

Author: Spaeth

[ 233 Pa. Super. Page 550]

This case presents the issue of the permissible extent of the use of the fact of possession of recently stolen property to conclude that the possessor is guilty beyond a reasonable doubt of the crimes of larceny (theft by unlawful taking or disposition),*fn1 burglary,*fn2 and receiving stolen property.*fn3 Hopefully, the relatively simple factual situation will enable us to untangle a series of interrelated appellate decisions in this area.

On June 14, 1973, at 6:27 a.m., a police officer saw four men, one of whom was appellant, pushing a wagon with a refrigerator in it. The refrigerator was still in its factory carton. When the officer approached, appellant dropped to his knees and tried to crawl behind a car, but he was immediately apprehended; the other men ran off and escaped.

The owner of a warehouse located one block from the scene of this incident testified at the trial. He said that the refrigerator had been in the warehouse when he locked the door at 6:00 p.m. the previous evening, but that on arriving at his warehouse the following day, he found the padlock on the door broken and the refrigerator

[ 233 Pa. Super. Page 551]

    gone. (An air conditioner was also discovered to have been stolen, but it was not recovered until two weeks later, while appellant was in jail.)

Judge Ribner, who tried the case without a jury, reached the following conclusion:

Under the circumstances, the defendant being one of four males pushing this factory box in the very early morning hours, and all of these males fleeing at the sight of a uniformed law enforcement officer, the evidence was amply sufficient to sustain convictions on all the charges. Additionally, the Commonwealth proved the manner of forced entry into the warehouse, and when this fact was coupled with the defendant's arrest in the immediate vicinity of the forced entry with a large item such as a Norge refrigerator still in the factory box, the Court was entirely justified in drawing an inference from these facts that the defendant conspired with others in order to accomplish the theft of this refrigerator, and was therefore guilty of burglary.

Appellant was sentenced to one to three years imprisonment on the burglary count, and three sentences of six to twelve months each were imposed for, respectively, unlawful taking, receiving stolen property and conspiracy,*fn4 all three to run concurrently with the sentence for burglary. The sufficiency of the evidence to sustain each of these convictions is now attacked.

Receiving Stolen Property

The offense of receiving stolen property is defined at 18 Pa. C.S. ยง 3925(a) as follows:

"A person is guilty of theft if he intentionally receives, retains, or disposes of moveable property of another knowing that it has been stolen, or believing ...


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