No. 390 April Term, 1978, Appeal from the Order of Court Denying Motions for New Trial and Arrest of Judgment entered on the 10th day of Nov., 1977, and the Final Judgment of Sentence entered on the 18th day of Nov., 1977, from the Court of Common Pleas, Greene County, Criminal Division at Nos. 478, 478(A) and 462 of 1976.
D. Stephen Ferito, Pittsburgh, for appellant.
W. Bertram Waychoff, District Attorney, and with him, James A. Caldwell, Special Assistant District Attorney, Waynesburg, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, P. J., and Price, J., concur in the result. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.
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This is an appeal from judgments of sentence on sixteen counts of theft. The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 3921(a).
Appellant first challenges the sufficiency of the evidence. Testimony at trial was as follows. In the early morning of November 9, 1976, state and local police pursued a black truck, which had been reported stolen. There was one person in it -- not appellant but a Thomas Ostrander. The police lost sight of the truck for a short time, but about 4:40 a. m. they found it again, near the house of Andrew Jackson Loar, appellant's brother. The engine was still running. Footprints in fresh snow (the snow had stopped falling about 12:30 or 1 a. m.) led from the driver's door of the truck to the house. Parked in the driveway was an automobile registered to appellant's brother. Its engine was warm. There were footprints in the snow going from the automobile to the house, and then back out to the automobile and in again to the house at least once more. With the permission of appellant's brother, the police searched the house. They found numerous items that had been reported stolen, including a good deal of automobile equipment. Appellant was in an upstairs bedroom, in bed, wearing thermal underwear. Ostrander was on the floor beside him, clothed. Appellant's trousers were on the floor in a heap; they were wet at the cuffs, as were Ostrander's. Appellant said he had been in bed since 8 p. m. The police arrested Ostrander. Appellant was arrested the next day.
In deciding the sufficiency of this evidence, we must first accept as true all of the evidence upon which the jury could properly have based its verdict, and then ask whether that evidence, with all reasonable inferences from it, was
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sufficient to prove appellant's guilt beyond a reasonable doubt. Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974); Commonwealth v. Petrisko, 442 Pa. 575, 579-89, 275 A.2d 46, 49 (1971). However, his guilt must be proved and not conjectured. Commonwealth v. Wilson, 225 Pa. Super. 513, 312 A.2d 430 (1973).
The Commonwealth's case was not overwhelming. The evidence was plainly sufficient for the jury to make these findings: that two persons had been involved in the theft of the truck -- one being needed to drive an automobile to the scene of the theft, the other being needed to drive the truck; that the two persons had returned to the Loar house at approximately the same time, as the running, or warm, engines indicated; that the driver of the automobile, in making at least two trips to the house, had unloaded things. What is not so plain is whether the jury could find that appellant had been the driver of the automobile. We have concluded that it could. Appellant had himself ruled out the possibility that he had arrived at the house from some unrelated activity, by telling the police that he had been in bed since 8 p. m. Given the evidence that his trousers were wet at the cuffs, the jury could find that this statement was false, and reflected a desire to conceal what he had been doing, specifically, that he had very recently been walking in the snow. From this finding the jury could reasonably infer that the place appellant had been walking in the snow was in the driveway, going back and forth from the automobile to the house.
Appellant argues that his jury was impermissibly tainted because it included one juror who had sat on a jury that had acquitted appellant on unrelated theft charges fifteen days before. We find that appellant has not properly preserved this argument for appeal. While appellant identified four prospective jurors as jurors from his earlier trial (all of whom were excused for one reason or another),
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he nowhere established for the record that any other juror had sat earlier. It is only in his appellate brief that he alleges that Juror # 11, Rebecca Owen, had sat at his prior trial. We cannot now recognize such an allegation. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974). Furthermore, it appears that appellant used only two of his eight peremptory challenges;*fn1 without having exhausted his allotted number, he cannot be said to have been prejudiced when the court refused to excuse more than three jurors for cause.
Appellant argues that he should get a new trial because the prosecutor made prejudicial closing remarks. Before examining the remarks, we first note that, contrary to the Commonwealth's suggestion, appellant did not waive his right to object to the remarks by waiting until immediately after the prosecutor had finished his closing to the jury. Where the content of the remarks was paraphrased, where the Commonwealth does not dispute the accuracy of the paraphrase, and where the trial judge treated the objection as timely, the objection will not be held to have been waived. Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978); Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977).
Appellant objected to the prosecutor noting that no defense was presented. Assuming that such a comment was impermissible,*fn2 its prejudicial effect was adequately cured by the court's instructions to the jury:
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This presumption of innocence is so commonly known in our law as a Constitutional guarantee that the defendant has no duty, absolutely no duty to present any witnesses in his own behalf or present any testimony in his defense, nor even to take the witness stand, and the fact that he does not do so as he did not do in this case, ...