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decided: March 29, 1976.


Appeals from judgments of sentence of Court of Common Pleas of Susquehanna County, Nov. T., 1973, No. 14, in case of Commonwealth of Pennsylvania v. David Stanton, Vaughn Howell, and Gerald Hinkley.


Paul A. Kelly, submitted a brief for appellant at No. 655.

Gerald C. Grimaud, for appellant at No. 813.

Edward P. Little, Jr., District Attorney, submitted a brief for Commonwealth, appellee.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion. Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this opinion.

Author: Van Der Voort

[ 239 Pa. Super. Page 49]

Appeals are taken to this Court from judgments of sentence rendered following jury trial and verdict of guilty as to a charge of burglary, appellants having been adjudged not guilty of charges of theft.*fn1 Post-trial motions were denied.

Shortly before midnight (11:30 P.M. or 11:45 P.M.) on Saturday night, August 18th, 1973, Gerald Hinkley, Vaughn Howell, aged 24 at the time, and David Stanton were drinking in a tavern known as Red's Diner in or near Springville Township, Susquehanna County. Howell was in urgent need of money to make back-payments for the support of his wife. He had been summoned into Court on the matter and was to appear in a few days. Howell asked Hinkley if he wanted to buy some cattle. Hinkley said he would like to look at them and Howell and Stanton got into Howell's car and Hinkley got into a pick-up truck which he had with him. The pick-up truck was towing a trailer for transporting horses. They set out for a barn which was rented and operated by Dale Brown, 28 years of age, in Elk Lake. They stopped at John Arnold's place where Hinkley left his truck and got into Howell's car. They drove to Dale Brown's barn to

[ 239 Pa. Super. Page 50]

    which the nearest house was 250 to 300 feet away, arriving shortly after midnight. Howell let Hinkley out at the barn, pulled on down the road, turned around and came back up to the barn shining his lights into the milkhouse and the barn. They all three went into Brown's barn and Howell pointed out a Charolais beef cow weighing from 1050 to 1100 lbs. and worth $700.00.

After looking at the Charolais cow, the three of them proceeded to the barn of Roger Sherman where Howell pulled up beside the barn so that his lights were shining into it. Hinkley and Howell entered the Sherman barn and after a few minutes came out and all three returned to Brown's barn, stopping on the way for Hinkley to pick up his truck and bring it to a knoll approximately 500 feet from the barn. All three went into the barn. They put an improvised rope halter on the Charolais cow and led and pushed her out of the barn by an exit through the milkhouse which adjoined the barn. Just outside the milkhouse was a cornfield and the Charolais cow bolted, entangling David Stanton and dragging him into and through part of the cornfield. The other two subdued the cow and led her to Hinkley's truck where she was loaded onto it. The three men proceeded again to the barn of Roger Sherman. They entered the barn and carried out four calves of the value of $320.00 which they loaded into Hinkley's trailer.

Hinkley gave Howell a check payable to cash for $150.00. Thereafter they parted.

The next morning Sherman discovered that four of his calves were missing and notified the Pennsylvania State Police around 7:00 A.M. Brown discovered that his Charolais beef cow was missing around 8:00 A.M. that morning and also filed a complaint with the State Police.

The Pennsylvania State Police made immediate investigation and inquiry. They learned that Hinkley, Howell and Stanton had been seen together in the South Montrose area, that Hinkley lived in Alcove, New York, and that the New York State Police Barracks nearest to

[ 239 Pa. Super. Page 51]

Alcove was in Selkirk. The Pennsylvania State Police then contacted the New York State Police who went over to Hinkley's horse farm and discovered that he had the Charolais cow and four calves. Hinkley immediately called Howell on this Sunday morning and asked him to destroy the $150.00 check. Arrests and charges of burglary and theft against appellant and Stanton followed.

Appellants were found guilty of burglary of Brown's barn and not guilty of burglary of Sherman's barn and not guilty of thefts. Howell was sentenced to 3 to 10 years and Hinkley to 2 1/2 to 5 years' imprisonment.

Howell attempted to defend by claiming that Sherman owed him money for work that he had done for Sherman and had given Howell 4 cows (which he, Howell, was to select) and the Charolais cow. He claimed further that the total price which Hinkley was to pay him was $600.00. The balance was to be paid in two weeks. Hinkley attempted to defend that he did not know there was anything wrong with his transaction with Howell and that Howell had given him a bill of sale for the animals. However, Hinkley was unable to show any bill of sale to the New York State Police when they first came to Hinkley's horse farm in Alcove, New York. A bill of sale did appear some unspecified number of days later.


Appellant first argues that the Commonwealth failed to prove his unlicensed or unprivileged entry into the barns. This is the Commonwealth's burden of proof under ยง 3502(a) of the "Crimes Code," supra, and the burden cannot be shifted to a defendant. Commonwealth v. Stoffan, 228 Pa. Superior Ct. 127, 149, 323 A.2d 318 (1974). Equally important as the prosecution's proving every element of a crime is the defense's raising timely objections, thus allowing the trial court to address itself to alleged trial errors. In the instant case, the question as to the burden of proving no license or privilege was not

[ 239 Pa. Super. Page 52]

    presented timely either in Howell's points for charge or in his motion for new trial and is now waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Appellant complains of that part of the charge of the court which was as follows:

"A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the volition (sic) to perform an act of which he is physically capable. A person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligent (sic) as the law may require with respect to each material element of the case. Ignorance or mistake to a matter of fact to which there is a reasonable explanation or an excuse is defense if: 1. The ignorance or mistake negatives the intent, knowledge, belief, recklessness or negligence required to establish a material element of the offense or the law provides that the state of mind established by such ignorance or mistake constitutes a defense."

The trial judge was following sections 301, 302 and 304 of the Crimes Code. In his points for charge the appellant asked the judge to charge on sections 302 and 304. He cannot now complain that what the judge said misled the jury. Prior to that part of the charge quoted above, the judge cautioned the jury three different times that in order to convict any of the defendants (including appellant) they must believe that he took the animals "with the mind of a thief." Appellant cannot successfully contend that twelve mature men and women sitting on the jury did not know that taking something "with the mind of a thief" means to take it with an intent to steal it.*fn2

[ 239 Pa. Super. Page 53]

The appellant claims that the judge's charge led the jury to believe that reckless or negligent conduct would supply the necessary intent of a burglar to commit a crime and should call for a new trial even though he requested the charge. Regarding the intent necessary to warrant a verdict of guilty of burglary the court, before reaching the points for charge submitted by appellant, charged the jury further:

"We are talking about intent. Did this and this is what the Commonwealth has got to prove, that he Vaughn Howell, took this cattle, this cow and these calves, with the mind of a thief. If he did he is guilty. If he didn't though and if his belief is such that a reasonable man could entertain, if that belief was reasonable, then of course you don't have the necessary intent or mind of a thief to deprive the owner thereof. The owner would be getting credit or value for the value of the calves or cow."

There was no objection to this part of the charge and no request that it be augmented. Notwithstanding the points requested by appellant we find nothing in this case indicating that the jury convicted the appellant or his co-defendant of burglary because they were reckless or negligent.*fn3

Appellant next contends that it was error for the

[ 239 Pa. Super. Page 54]

    lower court to wait from November 8, 1973, the date of the verdict, until January 7, 1975, for sentencing. The docket records that the case did not lie dormant; - filings were made of the transcript, a petition to amend the record (on which hearing was held), the opinion and order denying new trial, and appellant's exceptions thereto. Also, a pre-sentence report was prepared. Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 219, 82 A.2d 244 (1951), points out that "there is neither statute nor rule requiring that a court impose sentence during the term in which a defendant is convicted." If unnecessary delay occurs in the sentencing of an incarcerated defendant, a petition for habeas corpus is the corrective step. In the instant case, appellant was not incarcerated but was out on bail, he did not ask for any earlier sentence and was not prejudiced by any alleged delay in sentencing.

Appellant further argues that the lower court's refusal to permit his counsel to inspect and comment on the pre-sentence report is reversible error. Pennsylvania Rule of Criminal Procedure 1404 allows disclosure of this report to defense counsel for information and comment. The record is silent as to any reason for the court's refusal. Appellant should have had this right, although the refusal cannot be reversible error as it deals only with sentencing and not with the verdict. It is in regard to this issue that appellant raises his ineffectiveness of counsel claim, i.e., that counsel was ineffective in failing to obtain inspection of the report. We do not find this ineffectiveness of counsel but we do find that counsel should have been permitted to inspect and comment upon the pre-sentence report.

Finally, appellant argues severity of sentence, although admitting that the sentence was within statutory limits. He proposes that a co-defendant was not sentenced as severely as he. However this is no ground for reversing and/or modifying judgments of sentence. Commonwealth v. Mangum, 234 Pa. Superior Ct. 51, 334 A.2d 680 (1975).

[ 239 Pa. Super. Page 55]

Sentencing is particularly the province of the trial court, and must not be upset without manifest abuse of discretion. We need not address ourselves to this issue because ...

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