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COMMONWEALTH PENNSYLVANIA v. FLOYD BAILEY (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
FLOYD BAILEY, APPELLANT



No. 482 OCTOBER TERM 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Div., of Lycoming County at No. 75-10,057.

COUNSEL

Kenneth D. Brown, Assistant Public Defender, Williamsport, for appellant.

Allen E. Ertel, District Attorney, Williamsport, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., joins in this opinion, as well as in the concurring opinion by Cercone, J. Cercone, J., files a concurring opinion in which Price, J., joins. Hoffman, J., files a concurring and dissenting opinion.

Author: Spaeth

[ 250 Pa. Super. Page 405]

Appellant was convicted, following a trial by jury, of theft by unlawful disposition*fn1 and of theft by receiving stolen goods.*fn2 On this appeal he contends that the evidence was insufficient to sustain the conviction. We agree that the evidence was insufficient to sustain the conviction of theft by unlawful disposition, and we therefore vacate the judgment of sentence on that charge. However, we affirm the conviction on the charge of theft by receiving, and remand for resentencing.

In 1974, the Quaker State Telephone Company stored new and scrap telephone cable at two locations in Lycoming County, one at Trout Run, and the other at Loyalsock. The storage area at Trout Run was enclosed by a fence, while that at Loyalsock was open. On October 3, 1974, during an inventory check at Trout Run, an employee of Quaker State discovered that an entire reel of plastic-sheathed copper telephone wire was missing. The missing reel contained 4018 feet of wire, weighed 930 pounds and had a replacement value of $847.79. The employee was unable to establish the date when the reel disappeared. At the time of a

[ 250 Pa. Super. Page 406]

    prior inventory check at Trout Run on September 3, 1974, no wire had been missing. However, a week prior to the October 3 inventory check a hole cut in the fence at Trout Run and footsteps going in and out of the yard had been discovered.

From October 14 to 18, 1974, Quaker State employees removed some lead-coated wire from active use and stored it in piles as scrap wire at the Loyalsock location. Shortly thereafter, an employee discovered that the piles were diminishing daily.

The employee testified that the stolen copper and lead wire were of no practical use to an individual and that the only use for the wire was for telephone service. The copper wire consisted of 50 individual 22 gauge wires within a plastic sheath; it was a special type of wire used exclusively by telephone companies; it could not be used in homes or cars; and its only commercial value was for sale to a scrap dealer.

As a result of information received by the Pennsylvania State Police on November 14, 1974, a trooper went to the home of Sylvester Bailey, in Williamsport, Lycoming County. On an enclosed porch at Bailey's home the officer discovered cable of the type taken from the telephone company. The officer testified that the porch -- an area of sixty-four square feet -- was almost full of wire.

A telephone company employee identified the wire as that used by Quaker State Telephone Company. The telephone company returned the wire to its storage areas and then sold it as scrap. The employee testified that in his opinion the amount of lead-coated wire recovered from Bailey's home was approximately the same amount as that stolen from Loyalsock. He was unable to make the same judgment about the new copper wire. The scrap value of the lead-coated wire was $245.70.

Sylvester Bailey, who was arrested for receiving stolen goods, testified for the Commonwealth. He stated that his son, appellant, and another man brought the wire into his

[ 250 Pa. Super. Page 407]

    house and stacked it on the porch.*fn3 Bailey did not remember the ...


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