No. 573 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Montgomery County, No. 293-79
Before Hester, DiSALLE and Popovich, JJ. DiSALLE, J. files a Memorandum Dissenting Opinion.
The lower court's Opinion comprehensively states the case; therefore, the judgment of sentence will be affirmed with the Opinion of Richard S. Lowe, P.J. to be used for allocature purposes.
DiSALLE, J. files a Memorandum Dissenting Opinion.
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA VS. CARL S. MOORE
LOWE, P.J., April 29, 1980
Defendant has appealed to The Superior Court of Pennsylvania from a judgment of sentence imposed by this Court on January 24, 1980 following the defendant's conviction of retail theft.
On December 23, 1978 defendant Carl S. Moore entered the Sears, Roebuck and Company store in Abington Township, this county, and took into his possession a chain saw with a value in excess of $209.99. The defendant removed the merchandise from the department in which it was displayed without making provision for its purchase with the customer service desk located in that department. Several store employees subsequently observed the defendant walking through other departments of the store in possession of the unpurchased chain saw. Store Security Officer Stanley Kadelski, who is also a Montgomery County Detective, observed the defendant making his way through the store, in the process passing six (6) cash registers or customer check-out desks, without attempting to purchase the chain saw. The defendant then entered a main aisle of the store which led to an exit, furtively glanced around the store several times, and walked toward the exit. As the defendant was leaving the premises with the unpurchased merchandise he was detained by Officer Kadelski who subsequently contacted the Abington Township Police Department for assistance.
On December 23, 1978 the defendant was arrested and a Criminal Complaint was filed charging him with retail theft. A Preliminary Hearing convened January 12, 1979 before District Justice M. William Peterson, at which time it was determined the Commonwealth had established a prima facie case against the defendant. Subsequent to the filing of an Information, the defendant executed a waiver of formal arraignment and entered a plea of not guilty to the charge. Trial proceeded before the undersigned, without a jury, on November 5, 1979.*fn1 Following presentation of the Commonwealth's case-in-chief, defendant demurred to the evidence, which Motion was denied, whereupon the defendant proceeded to put in a case in defense. At the conclusion of the testimony, the defendant was found guilty of retail theft (the value of the merchandise being in excess of $150.00), a misdemeanor of the first degree.*fn2
On November 15, 1979 defendant filed a Motion for New Trial and in Arrest of Judgment contending, inter alia, that the denial of his demurrer at the conclusion of the Commonwealth's case-in-chief constituted error and that there was insufficient evidence to support a finding of defendant's guilt beyond a reasonable doubt. Following argument and upon consideration of the briefs of counsel, the aforesaid Motion was dismissed and the prayer for relief denied by Order of this Court dated January 3, 1980. On January 24, 1980 defendant appeared in Open Court with counsel and was placed on probation for a period of eighteen (18) months in the custody of the County Probation Department.Defendant now appeals to The Superior Court of Pennsylvania from the judgment of sentence urging in support thereof the two alleged points of error raised by the Motion for New Trial and in Arrest of Judgment.
Initially, defendant contends the Court erred in not sustaining his demurrer at the conclusion of the Commonwealth's case-in-chief. This issue has not been properly preserved for appellate review. It is well settled law that in the event a demurrer is denied by the trial court and the defendant does not rest following the adverse ruling, but elects to offer evidence in defense, the correctness of the court's ruling on the demurrer is no longer an available issue for appellate review. Commonwealth vs. Sourbeer, Pa. , 410 A.2d 768 (1980), Commonwealth vs. Pritchard, Pa. Superior Ct. , 411 A.2d 810 (1979), Commonwealth vs. Smith, Pa. Superior Ct. , 408 A.2d 1155 (1979), Commonwealth vs. Hurd, Pa. Superior Ct. , 407 A.2d 418 (1979). Because the defendant elected to testify and put in a case in defense, his allegation of error concerning this Court's denial of his demurrer is deemed to have been waived and the issue is moot.*fn3
Defendant also maintains there was insufficient evidence to support a finding of defendant's guilt beyond a reasonable doubt. It is fundamental that evaluating the credibility of the witnesses, weighing the evidence, and drawing a verdict from the evidence presented are functions of the factfinder. Commonwealth vs. Tate, 485 Pa. 180 (1979), Commonwealth vs. Zimmerman, Pa. Superior Ct. , 399 A.2d 1064 (1979). The finding of a judge sitting without a jury should be accorded the same weight as that of a jury. Commonwealth vs. Truss, 230 Pa. Superior Ct. 262 (1974), Commonwealth vs. Dawkins, 227 Pa. Superior Ct. 558 (1974). The determination of whether to grant a new trial on the ground that the evidence is insufficient to support a criminal conviction is committed to the sound discretion of the trial ...