No. 72 March Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, at No. 2050, Criminal Division 1976.
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, President Judge, and Wieand and Hoffman, JJ. Wieand, J., concurs in result.
[ 268 Pa. Super. Page 38]
After a jury trial, appellant was convicted of receiving stolen property and sentenced to 1 1/2 to 5 years imprisonment. On this direct appeal, appellant contends inter alia*fn1
[ 268 Pa. Super. Page 39]
that the lower court erred in: (1) not sustaining his demurrer,*fn2 and (2) improperly allowing evidence of prior crimes to impeach him and one of his witnesses. We conclude that the lower court improperly admitted evidence of prior crimes to impeach and, accordingly, reverse and remand for new trial.
Viewed in the light most favorable to the Commonwealth, the following evidence was adduced at appellant's jury trial on January 17-20, 1977:
On January 27, 1976, at approximately 7:00 a. m., three black men stole three automobiles -- two Mercedes-Benz and one 1976 Cadillac El Dorado, each with owner manuals inside -- off the lot at Bob's Auto Exchange in Harrisburg. The business office, from which dealer tags and keys were missing, had been broken into. Approximately 12 hours later, in Philadelphia, two police officers in an unmarked patrol car saw the El Dorado run a traffic light. Two black men were in the car. At the officers' signal, the El Dorado pulled over and stopped. However, as the officers approached the car on foot, it sped away. The officers returned to their vehicle and chased the El Dorado. During the chase, the man on the passenger side of the car jumped out, and the El Dorado continued at high speed. Finally, unable to make a left hand turn into a small street, the driver of the El Dorado stopped the car, jumped out, and fled on foot. One of the officers caught the driver and identified him at trial as appellant. In his search of the car, the officer discovered four dealer tags under the front seat and several titles and two owner manuals for Mercedes-Benz in the glove compartment; the owner of Bob's Auto testified that all such items came from his business.
[ 268 Pa. Super. Page 40]
Appellant testified that he was with his fiancee and friends, including one Vaughn Keith Lee, throughout the evening of July 26, 1976 until approximately 8:30 a. m. on July 27. He, his fiancee, and Lee then drove to the bus station, where he obtained a bus ticket to Philadelphia. After his fiancee and Lee left the station, another friend, Jimmy White, drove up in the El Dorado and offered him a ride to Philadelphia. Appellant cashed in his bus ticket and went with White. Appellant testified that he did not believe that White owned the El Dorado but that White had told him he was working for a car painting company and had to deliver the car to some one in Philadelphia as part of his job. Nonetheless, appellant and White drove around in the car for the next 9 to 10 hours, stopping at a lounge and the home of another of appellant's friends. Appellant admits that he was driving the car at the time the police signaled him to pull over. He testified that at that moment White told him for the first time that the car was "hot". He explained that his ensuing flight in the car and on foot resulted from panic. Several of appellant's friends, including Lee, corroborated parts of appellant's testimony; White did not testify.
On the basis of the above evidence, the jury found appellant not guilty of burglary and theft of movable property and guilty of receiving stolen property.
Appellant first contends that the evidence is insufficient to support his conviction for receiving stolen property. 18 Pa.C.S.A. § 3925.*fn3 Specifically, he claims that the Commonwealth did not prove beyond a reasonable doubt that he knew or had reason to know that the El Dorado was stolen.*fn4
[ 268 Pa. Super. Page 41]
In Commonwealth v. Williams, 468 Pa. 357, 365-366, 362 A.2d 244, 248-49 (1976), our Supreme Court held that a fact finder may permissibly infer guilty knowledge from an accused's unsatisfactorily explained possession of recently stolen goods as well as from other circumstances. Factors to consider in determining whether the inference of guilty knowledge may properly be drawn from such possession include: "the nature and kind of goods involved, the quantity of goods, the lapse of time from theft and possession, and the ease with which such goods can be assimilated into trade channels . . . the accused's conduct at arrest and his conduct while in possession of the goods, as well as, the accused's relationship, if any, with the victim of the theft." Id. See also, Commonwealth v. Bailey, 250 Pa. Super. 402, 378 A.2d 998 (1977); Commonwealth v. Simmons, 233 Pa. Super. 547, 336 A.2d 624 (1975). Moreover, we have held that an "attempt to avoid pursuit, or flight, is some evidence of guilty knowledge." Williams, supra 468 Pa. at 364 n. 3, 362 A.2d at 247 n. 3. See Commonwealth v. Phillips, 258 Pa. Super. 109, 392 A.2d 708 (1978); Commonwealth v. Murray, 246 Pa. Super. 422, 428, 371 A.2d 910, 913 (1977).
In the instant case, appellant admitted that: (1) he was in the El Dorado with his friend only 2 or 3 hours after the car was stolen off the car lot, (2) he did not believe that White owned the car, and (3) he fled police after he knew the car was stolen. Although, according to appellant, White was to deliver the car to some one in Philadelphia as part of a work assignment, appellant and White drove around Philadelphia for at least 9 hours. Police arrested appellant, the driver, only 12 hours after the car had been stolen and found other stolen plates, tags, and owner manuals under the front
[ 268 Pa. Super. Page 42]
seat and in the glove compartment. The owner of Bob's Auto did not know appellant. Finally, the jury found his explanation of the incident unsatisfactory. We conclude from all of the above circumstances that the jury could be properly convinced beyond a reasonable doubt that appellant had the requisite guilty knowledge. Accordingly, we hold that the evidence was sufficient to convict appellant of receiving stolen property.
Appellant next contends that the lower court erred in admitting evidence of prior crimes to impeach the credibility of Lee, one of his witnesses.
During Lee's cross-examination, the following exchange occurred over defense counsel's objections:
"Q. Mr. Lee, have you ever been convicted of a crime?
"THE WITNESS: Yes, sir, I have been.
"Q. What crimes, Mr. Lee?
"A. Let's see, fornication and bastardy and corrupting the morals of a minor.
"A. That's all that's there.
"A. I think it was receiving stolen property, if I ...