NO. 446 PITTSBURGH, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Westmoreland County, at Nos. 88, 88a January Term, 1979.
Salvatore F. Panepinto, Charleroi, for appellant.
Patrick H. Mahady, Assistant District Attorney, Greensburg, for Commonwealth, appellee.
Hester, Brosky and Van der Voort, JJ. Brosky, J., files a concurring opinion. Hester, J., files a dissenting statement.
[ 291 Pa. Super. Page 510]
On August 7, 1978, a Cadillac Coupe de Ville, owned by one Terlecki, was stolen from the Monroeville Mall in Allegheny County. On September 13, 1978, five weeks and two days later, the vehicle was observed by a police officer in front of appellant's place of business, an auto repair shop, on River Street, Monesson, Westmoreland County. Because the vehicle created an obstruction to traffic the officer ordered appellant to move it. An argument ensued and appellant was arrested for disorderly conduct and ordered by the officer to come to the Police Station. Appellant then said:
[ 291 Pa. Super. Page 511]
"You want my vehicle moved, is that right? How about if I drive it to the station? This way I'll have the vehicle moved and then you'll have me in custody at the same time." (N.T. p. 24)
The officer agreed and appellant drove the car to the police station.
On September 26, 1978, a second officer observed the same Cadillac parked on 6th Street in Monesson, which was neither in the vicinity of appellant's home or his place of business. The vehicle was parked illegally, so the officer had the car impounded. Thereafter the car was determined to be stolen. Appellant was arrested on charges of Unauthorized Use of a Motor Vehicle,*fn1 and Receiving Stolen Property.*fn2
The case was heard by the lower court sitting with a jury. Testimony was presented that the vehicle bore, both on September 13 and 26, 1978, a license plate reading 733-38Z. However, no evidence was presented as to whom such plate was registered. The owner of the vehicle stated that at the time the car was stolen the license plate on the car was F-66-132. He further testified that he had not given appellant permission to drive the car. Appellant did not testify. At the end of the testimony, the judge dismissed the charge of unauthorized use. The charge of receiving stolen property was submitted to the jury which returned a verdict of guilty. Post trial motions were denied and appellant was sentenced. This appeal followed.
Appellant's sole contention raised before this court is that the Commonwealth failed to present sufficient evidence to prove his guilt beyond a reasonable doubt. In particular, appellant argues that the prosecution did not show that he received and retained the ...