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COMMONWEALTH PENNSYLVANIA v. JAMES EMMI (08/21/81)

filed: August 21, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JAMES EMMI, APPELLANT



No. 364 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Delaware County, at No. 4798 of 1977.

COUNSEL

Robert F. Pappano, Assistant Public Defender, Chester, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ. Watkins, J., files a concurring and dissenting opinion.

Author: Cercone

[ 290 Pa. Super. Page 88]

Appellant, James Emmi, takes this appeal from the judgment of sentence rendered by the Court of Common Pleas of Delaware County for the crimes of unauthorized use of an automobile,*fn1 theft by receiving stolen property*fn2 and criminal conspiracy.*fn3 He raises two questions in this appeal: (1) whether the lower court erred in that its charge to the jury constituted a violation of the appellant's constitutional right to a fair and impartial trial; and (2) whether the evidence was sufficient to sustain his conviction for the offense of criminal conspiracy.

The operative facts of the instant case are as follows: In the early morning hours on August 30, 1977, appellant Emmi was observed by a police officer when he disregarded a red light. The officer who witnessed this blatant violation of the Motor Vehicle Code stopped the blue 1966 Pontiac GTO which the appellant was driving. Unknown to the officer,

[ 290 Pa. Super. Page 89]

    this vehicle had been reported as stolen only five hours earlier by its rightful owner. Upon being asked for his owner's card, the appellant told the inquiring officer that his name was Emmi and that he could produce the proper identification if he were allowed to enter his nearby residence. Having been mistakenly informed via police radio that the car involved was not a stolen one, the officer allowed Mr. Emmi and his three passengers to enter the house. The officer stayed outside of the residence and wrote out appellant's traffic violation citation. At this time, he received another broadcast via police radio that the prior report had been mistaken and that the vehicle in question was, in fact, stolen. He immediately went up to the house which the four people had entered and he proceeded to knock on the door. Upon receiving no response, the officer observed that the lights which previously had been on in the house were now being extinguished. He then impounded the vehicle and initiated procedures to obtain a warrant to arrest appellant Emmi. Pursuant to the warrant which was later issued, Mr. Emmi was taken into custody, but the identities of his three passengers remained unknown.

Appellant was then charged with theft by unlawful taking,*fn4 unauthorized use of an automobile, theft by receiving stolen property, criminal conspiracy, and disorderly conduct.*fn5 After appellant was held for court on all charges, his case proceeded to trial before a judge and jury on January 16, 1978. Just prior to closing argument, however, the Commonwealth withdrew the charge of disorderly conduct. The appellant was then found guilty of all the remaining charges except that of theft by unlawful taking on which the jury found him not guilty. After his post-verdict motions were denied, the appellant was sentenced to a term of two to four years incarceration for theft by receiving stolen property and was also ordered to pay costs, a $200 fine, and $275 in restitution to the victim. In addition, he received a suspended sentence on unauthorized use of an automobile as well as

[ 290 Pa. Super. Page 90]

    criminal conspiracy. This appeal from the judgment of sentence was then pursued.

Appellant's initial contention is that the trial court's summary of the evidence contained in the charge to the jury was biased and prejudicial to him thereby depriving him of his right to a fair and impartial trial by jury. Pa.Const. art. I, ยง 9. In support of his position, appellant, in his brief, directs our attention to the following passages. One is ...


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