No. 576 January Term, 1976, Appeal from the Order of the Superior Court at No. 813 October Term, 1975, Affirming the Sentence of the Court of Common Pleas, Criminal Division, of Susquehanna County, at No. 14 November Term, 1973
Gerald C. Grimaud, Tunkhannock, for appellant.
Edward P. Little, Jr., Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., dissents.
Appellant, Vaughn Howell, was tried by a judge and a jury and was convicted of burglary. Post-verdict motions were denied and appellant was sentenced to three-to-ten years' imprisonment.
An appeal was filed with the Superior Court. That court remanded the matter for resentencing because appellant's counsel had not been given an opportunity to inspect the presentence report, but affirmed the judgment of sentence in all other respects. Commonwealth v. Stanton, 239 Pa. Super. 47, 362 A.2d 355 (1976). Appellant filed a petition for allowance of appeal, which this court granted.
The facts are as follows. Shortly before midnight on August 18, 1973, appellant and his co-defendants, Gerald Hinkley and David Stanton, were drinking at Red's Diner in Springville Township, Susquehanna County. Appellant offered to sell Hinkley four calves and one beef cow for $600. The four calves were taken from the barn of Roger Sherman while the beef cow was taken from the barn of Dale Brown. Hinkley gave appellant a check for $150 with the balance of $450 due within two weeks.
Sherman and Brown discovered their animals were missing the next morning. Both farmers notified the police. Subsequent investigation led to the arrest of all three co-defendants.
Appellant testified in his own defense, claiming that Sherman owed him money for work performed. When appellant pressed Sherman for the money, Sherman told him he was short of cash. As appellant had helped Sherman for a number of years and Sherman had often paid his debts by giving cattle, the pair discussed paying appellant in cattle. Sherman offered appellant any four calves of his choice. When told this was insufficient, Sherman offered to throw in a beef cow. For some reason, appellant believed the cow was the one eventually taken from the Brown farm.*fn1
Appellant testified that on the night the cattle were taken, he intended to tell either Sherman or a member of the family that he was taking the cattle. When driving past the Sherman farmhouse, however, appellant saw no lights on, so he decided to wait until the next day to tell Sherman he had taken the cattle. After taking the beef cow from the Brown ...