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decided: June 29, 1979.


No. 414 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 2003/2008 May Term, 1977.


Donald Levin, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Div., Philadelphia, for Commonwealth, appellee.

Price, Hester, and Hoffman, JJ.

Author: Price

[ 267 Pa. Super. Page 421]

Following a non-jury trial, appellant was convicted of three counts of receiving stolen property.*fn1 His post-trial motions for arrest of judgment or a new trial were denied by the court below, and this appeal challenging sufficiency of the evidence was timely filed. When the court below authorized its opinion in compliance with Pa.R.A.P. No. 1925(a), it determined that judgment should be arrested on two of the three counts. Therefore, appellant appeals from his conviction of only one count of receiving stolen property, on which he was sentenced to nine to twenty-three months of imprisonment.

Viewing the evidence in the light most favorable to the Commonwealth, the following was adduced at trial. On April 14, 1977, at approximately 5:00 p. m., Detective Frank Stewart of the Philadelphia Police Department Auto Squad, accompanied by a second officer, went to a two-story private garage at 20th and Venango Streets. The officers were prevented from gaining access to the inside of the premises by a padlocked cyclone fence that opened onto 20th Street. A second entrance, however, a ramp leading from the Venango Street side to the second-story level of the garage, was accessible to them. While ascending the ramp, the officers were able to view the lower level of the building. It consisted of a fifteen by twenty-five foot rectangular courtyard, and contained two rows of individual stalls on the Venango Street side, one row having egress to Venango Street only and the other opening onto the courtyard; several other stalls were situated on the 20th Street side of the building. Other parking facilities were located on the second floor. The officers saw a 1975 truck cab inside one of the stalls, a late model Ford engine on a block, and a shed in which floor mats, new car seats, rugs, car frames, dashboards, broken glass, and other items were heaped. When the officers descended the inner staircase to the first level,

[ 267 Pa. Super. Page 422]

    they observed a number of vehicles that were described by Detective Stewart as "shells, stripped completely out, cut in half." (N.T. 45).

As the officers proceeded through the area, they heard a noise outside the garage and saw an automobile being driven away. The officers secreted themselves behind one of the garage partitions. The chain on the gate rattled, the cyclone fence was opened and closed, and the chain rattled a second time. The officers peered from behind the wall and observed appellant, inside, relock the chain. Appellant was immediately arrested and his keys seized. One key matched the cyclone fence lock, a second key unlocked a stall on the second level of the building, and a third key unlocked the only garage stall on the first level that was locked. Inside the first-floor garage, the officers saw a freezer, six or seven new tires, three car radios, a box of tools, an acetylene burning torch with hoses and a brass tip, and some debris. Detective Stewart testified that he could not identity the tires or radios as belonging to any specific automobiles. (N.T. 93). An acetylene and an oxygen tank were located on the first level in front of an open stall housing a stolen Chevrolet Nova, which appellant was found guilty of receiving and herein appeals.

Detective Stewart testified that cars in the various stalls were disassembled by means of a blow torch. He judged from his experience with the Auto Squad that a "cutting" operation was underway, whereby stolen cars were dismantled for their salable parts. He indicated that although junkyards purchase wrecked late-model cars for parts, such legitimate businesses normally post signs outside the premises. None of the cars in this garage appeared to be damaged by accident, and no sign was posted to indicate the nature of the business being conducted. On cross-examination, Detective Stewart was asked, "From what you could observe, this was the work of more than one person, wasn't it?" The officer responded, "Oh, it had to be." (N.T. 76). Serial numbers on the frames of several of the vehicles, including the Nova, were relayed through police channels. The officers

[ 267 Pa. Super. Page 423]

    learned that the vehicles had been stolen. Detective Stewart testified that the only cutting material on the first level of the garage, other than the oxygen and acetylene tanks, was found in ...

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