No. 57 April Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, No. CC760-2025A of 1976.
John H. Corbett, Jr., Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, President Judge, and Wieand and Lipez, JJ. Wieand, J., files a dissenting statement.
[ 273 Pa. Super. Page 418]
Appellant was convicted on July 30, 1976 in a non-jury trial of theft by unlawful taking,*fn1 receiving stolen goods*fn2 and burglary.*fn3 The trial judge immediately gave appellant a general sentence of two to four years imprisonment.*fn4 Appellant timely filed both post-verdict motions and an appeal from this judgment of sentence. On February 16, 1977 the trial court denied appellant's post-verdict motions, and modified sentence, imposing an imprisonment of three months to six months and twenty-three days for the burglary, with a consecutive two-year probation for theft.*fn5 Appellant contends that the evidence was insufficient to support the verdicts. We agree, and order appellant discharged.*fn6
The Commonwealth's evidence was as follows. An employee of an automobile dealership testified that, on the morning of February 18, 1976 at "around a quarter to 8:00," she was dusting off cars in the showroom, when she saw
[ 273 Pa. Super. Page 419]
appellant standing in a corridor off the showroom looking around. She assumed he was a customer and was going to ask if she could help him, but she changed her mind. When she looked up again, appellant was gone. She stated that appellant could not have come through the showroom, because she would have seen him. She knew he did not go into her office, because she could see through the large window of her office from the showroom. The only remaining places appellant could have gone were the main office, the parts room, or the service department. She did not believe he had gone to the service department, because she would have seen the door swinging when she looked up and noticed appellant was gone.
The dealership's service manager testified that at about 8:00 a. m. or shortly afterward on February 18, 1976 the parts manager came to him and said, "I think we're missing some radios." A check of computer inventory records verified that "[r]oughly somewhere around eight or nine" GM AM-FM stereo car radios were missing. The computer run generated an "exact list" of missing part numbers. The service manager went to the body shop, and noticed that the door was held open by a buffing pad. Walking into the shop, the manager saw a man other than appellant, and told the man he would like to talk to him. The man darted out the door, and jumped into the passenger side of a black 1975 Oldsmobile Toronado. The car had the motor running and immediately sped away. The service manager, however, managed to see the car's license number, which was given to the police as the incident was immediately reported to them by phone. The service manager also testified that the man he had seen was not in the courtroom at trial.
Three policemen gave testimony which established the following. At about 8:15 a. m. on February 18, 1976 the black Toronado with the reported license number was spotted by police from one township, who chased the car and lost it. Police from another township spotted the car at about 8:30 or 8:35 a. m. They chased and stopped the car. A Mr. Woodson, who was not in the courtroom for the trial, was
[ 273 Pa. Super. Page 420]
driving the car, which was registered in his name. At the time the car was stopped, appellant was in the front seat on the passenger side. In the back seat of the car were six boxes, each containing a GM AM-FM stereo car radio, which were eventually returned to the auto dealership's service manager, after he identified them as coming from the dealership. No ...