No. 526 March Term 1977, Appeal from Order and Sentence in the Court of Common Pleas of Adams County, Criminal Division, CC-299-76 of March Term, 1977.
Robert E. Campbell, Gettysburg, for appellant.
Samuel E. Teeter, Assistant District Attorney, Gettysburg, did not file a brief on behalf of the Commonwealth, appellee.
Spaeth, Hester and Montgomery, JJ.
[ 271 Pa. Super. Page 438]
This is an appeal from a judgment of sentence for receiving stolen property. 18 Pa.C.S.A. § 3925 (Purdon's 1973).
In March 1974, appellant, her husband, Henry Farrar, and her 15 year old son, Joseph Minor, entered the home of Lawrence Hogan in Rockville, Maryland, without his permission and took two antique china closets and one antique table. In September 1974, the Farrars moved to Pennsylvania, bringing the stolen property with them. N.T. at 11. On August 6, 1976, a Pennsylvania state trooper conducted a search of appellant's home pursuant to a search warrant that specified that there was probable cause to seize a two-door dark wood china closet with curved glass, sides and front. The trooper seized two china closets -- an oak china closet with two doors, and a dark wood china closet with one door and curved glass, sides and front. On August 14, the trooper returned to appellant's home with a search warrant listing twenty items to be searched for and seized. The trooper was accompanied by several private citizens, among them Lawrence Hogan's sister, Mrs. Gladys Campbell. Mrs. Campbell noticed a table that she believed was one of the items that had been taken from Mr. Hogan's house. Although this table was not one of the items listed on the search warrant, the trooper seized it. On August 17, a complaint was issued against appellant, and this was followed by an information charging, in the first count, that
[ 271 Pa. Super. Page 439]
"on or about August 6, 1976," appellant did "receive, retain or dispose of" the two china closets and one table, knowing that they had been stolen from Mr. Hogan, and in the second count, that she had corrupted the morals of her minor son Joseph.
At the beginning of the trial, the District Attorney explained the Commonwealth's theory of the case twice, the second time at the request of the trial judge, who then told the jury that he understood the Commonwealth's theory to be that appellant was guilty of receiving stolen property because while in Pennsylvania she had retained property that had previously been stolen in Maryland. After making these comments, the trial judge told the jury that he was not trying to influence their verdict. N.T. at 4, 5. During the trial, appellant's son and Mrs. Campbell testified that the Hogan house had been broken into and the items later seized in appellant's home were missing. N.T. 14, 15, 35. Appellant's counsel objected to Mrs. Campbell's testimony because she was not a resident or owner of the Hogan house, but the court overruled his objection. N.T. 33. After the Commonwealth finished its case, the court sustained a demurrer to the charge of corrupting the morals of a minor. It then granted the Commonwealth leave to amend the information and charge that the offense of receiving stolen property had occurred "at or about September 1, 1974, to August 6, 1976," instead of "on or about August 6, 1976." N.T. 81-83. The jury found appellant guilty of this charge, and after dismissing her post-trial motions, the judge sentenced appellant to two to four months in prison, to pay costs, and "[i]f there [is] any property unlawfully in the hands of [appellant], she is directed to make restitution to the party or parties entitled thereto" The judge recited the fact that the two china closets and table "were recovered . . . by the police authorities [and] are now in the hands of their rightful owner." N.T. 8. The judge also stated:
THE COURT: The Court has given this case careful consideration. As indicated a few moments ago, we reviewed
[ 271 Pa. Super. Page 440]
the record last night and previously. We have given weight and consideration to grounds which are designated by our appellate courts when considering the matter of probation, which counsel for the Defendant is now urging, should be given in this case. We find none of the grounds set forth in the Act of Assembly which justify probation.
We understand that this Defendant has one child by her second marriage. That child is eight years of age, did you say, Mr. Campbell?
THE COURT: Seven years of age. Is that the only child living at home with the Defendant at this time?
THE COURT: We feel that under all the facts and circumstances a jail sentence is required in this case. We decline to enter an Order of probation because we feel that to do so would depreciate the seriousness of the offense which the defendant committed. We feel further that a jail sentence is justified to deter the Defendant and others from committing the criminal acts such as the Defendant committed in this case. We're also mindful, very mindful, of the fact, according to the evidence, of Mrs. Farrar's son, who was either 14 or 15 years of age when he participated in a burglary in Maryland, which led to the offense charged in Adams County, Pennsylvania, namely; retaining the possession in Adams County, Pennsylvania, of goods stolen by means of a burglary in Maryland and in which, according to the testimony of Mrs. Farrar's son, she physically participated as well as himself and her present husband, who is the stepfather of the Defendant's son, Joseph Minor, now 18 years, I am advised.
Another reason for the Court declining probation is that we're convinced that the conduct of the Defendant, Mrs. Farrar, in this case, was a bad influence on her boy, Joseph Minor, who was either 14 or 15 years of age when the burglary was committed in Maryland and when the
[ 271 Pa. Super. Page 441]
stolen goods were brought into Adams County, Pennsylvania, by the Defendant and her husband. At that time, the minor boy, Joseph Minor, resided with his mother in her home in Adams County. We feel that by reason of the bad example set by the mother in this case by her criminal conduct, it may well be that her young son was encouraged to engage in conduct which violated the criminal laws of Pennsylvania and which led to the questioning of the boy by the law enforcement officer of Adams County, Pennsylvania. At that time, during the questioning, according to the record and the testimony of Joseph Minor, the boy, he was asked by the Adams County authorities whether he had engaged in any other criminal activities other than the activities they were then investigating and which had nothing to do with this case. In answer to the question asked by the Adams County authorities as to whether he had engaged in any other criminal conduct, he frankly stated that he had and they asked him when and where, and he then gave a truthful answer and revealed for the first time how the stolen goods came into Adams County, Pennsylvania and were retained in this County in the home of the Defendant, Mrs. Farrar, who had refinished some of the stolen goods, and as I recall the testimony, had them on display or was using them in her own dining room.
Sentencing Hearing, N.T. 5, 6, and 7.
Appellant's first argument is that the lower court did not have jurisdiction because the crime occurred before she and her family moved to Pennsylvania. In her view, receiving stolen property is not a continuing offense; once she received and retained the stolen property in Maryland, the offense terminated.
Section 3925 reads as follows:
A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has
[ 271 Pa. Super. Page 442]
probably been stolen, unless the property is received, retained or disposed with ...