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COMMONWEALTH v. KING (02/02/76)

decided: February 2, 1976.

COMMONWEALTH
v.
KING, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1974, Nos. 297 and 300, in case of Commonwealth of Pennsylvania v. Lorenzo King.

COUNSEL

John Myers and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

William A. Richardson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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 Watkins, P.j. Jacobs and Price, JJ., concur in the result.

Author: Watkins

[ 238 Pa. Super. Page 191]

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, by the appellant-defendant, Lorenzo King, after conviction by a jury of conspiracy, burglary and theft by receiving stolen goods. Post-trial motions were denied and the appellant was sentenced to one and

[ 238 Pa. Super. Page 192]

    a half to five years imprisonment on the charge of burglary and two years probation on the charge of conspiracy. A demurrer had been sustained to the charge of attempted theft.

The evidence established that the appellant drove the getaway car after the co-defendant had entered the victim's home and stolen the goods. The victim identified the defendant and the co-defendant testified that he had not seen the defendant until after he completed the theft.

The court below charged the jury that they could find the appellant guilty of either receiving stolen goods or burglary but not both. The jury found the defendant guilty of both. The court below sentenced only on burglary. Appellant now contends that he is entitled to a new trial on the ground that the judge should not have accepted the verdict because it was inconsistent and that it showed the jury to be hopelessly confused.

Both the Commonwealth and the appellant cited United States v. DiMatteo, 169 F.2d 798 (3d Cir. 1948), and United States v. Kahan, 479 F.2d 290 (2d Cir. 1973), as supporting their respective positions.

In United States v. DiMatteo, supra, a jury found the defendant guilty of forgery but not guilty of theft of a savings bond and "recommended clemency". The trial court in speaking to the jury after the verdict said that in its opinion the verdict was "laughable" and that the jury had erred in its function. The court, nevertheless, allowed the verdict to be recorded and sentenced on the forgery count. The Circuit Court reversed on the ground that the jury was hopelessly confused and had not carried out the instructions as clearly shown by the trial judge's remarks.

In United States v. Kahan, supra, the Circuit Court allowed a conviction to stand where a jury found the defendant guilty on several stricken counts on a sixty-seven count verdict. The defendant argued that the ...


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