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COMMONWEALTH PENNSYLVANIA v. ELIZABETH HUBERT (01/29/82)

filed: January 29, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ELIZABETH HUBERT, APPELLANT



No. 854 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Erie County, No. 416 of 1980.

COUNSEL

William Scarpitti, Erie, for appellant.

Paul Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.

Wickersham, Wieand and Beck, JJ. Wieand, J., concurs in the result.

Author: Beck

[ 294 Pa. Super. Page 607]

Appellant, Elizabeth Hubert, was tried without a jury for the offense of Retail Theft, a summary offense, 18 Pa.C.S.A. § 3929. She was fined $15. She contends she was denied a fair and impartial trial in the lower court because the judge disclosed his conclusion prior to the completion of the case. We do not find merit in the appellant's argument and we affirm the lower court.

A person is guilty of a Retail Theft if he or she "transfers any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some of the full retail value thereof . . . ." 18 Pa.C.S.A. § 3929(a)(3). See also Commonwealth v. Shapiro, 223 Pa. Super. 15, 297 A.2d 161 (1972).

The appellant in her testimony admitted that she put a package of razor blades and a small jar of dried roast beef in her purse. She further admitted that at the time she transferred these items to her purse, she did not intend to pay for them. She added, however, that she then felt embarrassed and intended to put them back or tell a clerk about them. She was apprehended before she did either.

[ 294 Pa. Super. Page 608]

The appeal is based upon the appellant's contention that the presiding judge denied her a fair and impartial trial when he disclosed his conclusion prior to completion of defendant's case. After appellant had admitted the taking and the concealment with intent not to pay for the items, the following exchange, which is the subject of this appeal, took place:

MR. SCARPITTI (appellant's counsel):

Q. Have you had trouble with Super Duper in the ...


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