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COMMONWEALTH PENNSYLVANIA v. MARLYN OWENS ROACH (11/14/78)

decided: November 14, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
MARLYN OWENS ROACH, APPELLANT



No. 812 October Term 1977, Appeal from Judgment of Sentence of Cirillo, J., dated Jan. 4, 1977, in the Court of Common Pleas of Montgomery County, Pa., Criminal Division at Number 1753-76.

COUNSEL

E. A. Smith, with him Irene H. Cotton, Philadelphia, for appellant.

William T. Nicholas, District Attorney, Norristown, submitted a brief for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 260 Pa. Super. Page 262]

Appellant was convicted by a judge sitting without a jury of theft by unlawful disposition.*fn1 Her post-trial motions were denied and a fine of $300 was imposed. This appeal followed.

[ 260 Pa. Super. Page 263]

On December 26, 1975, a Pennsylvania state trooper was summoned to 260 Allentown Road in Salford Township, Montgomery County. This property was partly owned by appellant's estranged husband, Lee Roach.*fn2 When the trooper arrived, he saw appellant inside one of the apartments, and four men loading furniture into a U-Haul truck. The trooper entered the apartment and observed no furniture inside except for a sofa in the living or dining room. He questioned appellant, who produced identification, and left without making an arrest. On December 31 Roach returned to the property. The back door to the kitchen was open and first floor windows were broken and covered with card board and scotch tape. Furniture and personal items that had been in the apartment two weeks before were missing. On April 12 Roach filed a private criminal complaint charging appellant with burglary and theft by unlawful disposition.

The trial judge found appellant guilty of "theft of movable property" the "amount [of which] wasn't proven." The judge set the amount as $50 or less, making the offense a misdemeanor of the third degree. (N.T. 80, 12/13/76) From his description of the offense at trial it is not clear which property the judge found appellant guilty of stealing. In his opinion on the post-verdict motions, however, the judge only discussed the theft of a gun rack, which was missing and was the exclusive property of Lee Roach. Slip opinion at 3. Appellant had maintained at trial that all the other items taken*fn3 were either hers alone or were jointly

[ 260 Pa. Super. Page 264]

    owned. (N.T. 51, 12/13/76) She testified that she did not know of the gun rack's existence, much less take it from the apartment. On appeal, she particularly takes issue with the trial judge's statement that since the gun rack was missing on December 31, and "since virtually all of the property in the apartment was removed by her cousins under her directions, it is a reasonable inference that the gun rack was included among the property removed." Slip opinion at 3.

In considering a claim that evidence was insufficient, we must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Porter, 229 Pa. Super. 314, 323 A.2d 128 (1974). Nevertheless, "[t]o sustain a conviction, the facts and circumstances which the Commonwealth prove must be such that every essential element of the crime is established beyond a reasonable doubt." Commonwealth v. Larkins, 235 Pa. Super. 19, 21, 341 A.2d 204, 205 (1975) (quoting Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973)). The Commonwealth "may in the proper case rely wholly on circumstantial evidence, [but] the conviction must be based on more than mere suspicion or conjecture." Id.

We have recently reversed two convictions for theft by unlawful disposition where the evidence was, as it is here, largely circumstantial. In Commonwealth v. Keller, 249 Pa. Super. 384, 378 A.2d 347 (1977), the defendant had been convicted of theft of money from a coin box in a car laundry. The Commonwealth was only able to show that a bystander had seen the defendant at the site of the coin box, and that when the bystander approached him, the defendant fled. We reversed because "[n]o evidence was introduced tending to show that appellant had tampered with the coin boxes or taken anything from them." 249 Pa. Super. at 388, 378 A.2d at ...


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