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COMMONWEALTH PENNSYLVANIA v. WILLIAM J. POSAVEK (05/23/80)

filed: May 23, 1980.

COMMONWEALTH OF PENNSYLVANIA,
v.
WILLIAM J. POSAVEK, APPELLANT



No. 2182 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Northampton County, Criminal Division, No. 1568-1976.

COUNSEL

Richard Haber, Bethlehem, for appellant.

Gerald I. Roth, Allentown, submitted a brief on behalf of Commonwealth, appellee.

Price, Gates and Dowling, JJ.*fn*

Author: Price

[ 278 Pa. Super. Page 267]

On February 11, 1977, following a jury trial, appellant was convicted of conspiracy*fn1 and theft by deception.*fn2 Post-trial

[ 278 Pa. Super. Page 268]

    motions were denied by the court en banc, as was appellant's petition to reconsider the motions in light of Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977). At the sentencing hearing, appellant presented a motion for new trial based on after-discovered evidence. A hearing was held on February 10, 1978, in which evidence was presented on appellant's petition claiming a juror's violation of his duty to refrain from discussing the case with others. The petition was denied, and on July 19, 1978, appellant was given a suspended sentence and ordered to make restitution in the amount of $4,500. Appellant takes this appeal alleging that the evidence was insufficient to support the conviction for theft by deception and that a new trial is warranted because of the misconduct of a juror. We find no merit in these contentions, and affirm the judgment of sentence.

Initially, we note that in judging the sufficiency of the evidence, we must view the evidence and all inferences arising therefrom in the light most favorable to the verdict winner and determine whether it is sufficient to find every element of the crime beyond a reasonable doubt. Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979); Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979). Viewed in this fashion, the evidence revealed the following course of events. On January 17, 1976, Michael Bendas responded to this ad which he read in the Allentown Morning Call:

"Fastest growing industry, earn from $15,000 to $50,000 a year. No selling or vending. You get inventory and training. Need $7500.00 to $10,000. Call 691-6188."

His telephone call was answered by the Shop-Rite Construction Company, a home improvement business, and pursuant to their directions, he proceeded to their warehouse and offices in Bethlehem, Pennsylvania.

Nick Hammer met Mr. Bendas at the door of Shop-Rite's building and showed him a partially completed display of fire, burglar and smoke alarms. This was Mr. Bendas' first inkling of the nature of the business in which he ...


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