No. 1668 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal Division, at No. 1938-1978
Renald S. Baratta, Easton, for appellant.
Michael S. Goodwin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Beck, Watkins and Hoffman, JJ.
[ 296 Pa. Super. Page 259]
This is an appeal from judgment of sentence following a non-jury trial wherein appellant was convicted of two counts of theft:*fn1 theft by unlawful taking or disposition*fn2 and receiving stolen property.*fn3
Appellant initially claims that the verdict did not conform to law. Specifically, he alleges that since the trial judge failed to comment as to the separate counts of the information, his silence constituted an acquittal of all unmentioned counts. That argument is novel, but clearly incorrect. It is premised upon a misreading of this court's opinion in Commonwealth v. Samuels, 235 Pa. Super. 192, 340 A.2d 880 (1975). In that case, the trial judge found defendant guilty of one of three counts in the indictment.
The trial judge found appellant guilty of "the charge of possession of dangerous drugs, of these drugs, beyond a reasonable doubt in the opinion of the Court." However, he made no comment as to the other two counts of the indictment . . . . When the trial judge found appellant guilty of possession and made no comment at that time as to other counts of the indictment, this acted as an acquittal of the unmentioned counts. Commonwealth v. Curry, 285 Pa. 289, 132 A. 370 (1926); Commonwealth v. Day, 114 Pa. Superior Ct. 511, 174 A. 646 (1934).
Id. 235 Pa. Super. at 207-208, 340 A.2d at 888 (footnote deleted).
[ 296 Pa. Super. Page 260]
Had the trial judge in the instant case found appellant guilty of theft by unlawful taking or disposition while omitting mention of receiving stolen property, we would be bound by Samuels to find that appellant was acquitted of the latter charge. But here the trial judge found appellant guilty on the entire information.
Appellant also argues that his demurrer following completion of the Commonwealth case should have been sustained. It is clear, however, that since appellant did not rest following the trial court's denial of his demurrer and instead presented evidence, the ruling on the demurrer is no longer an appealable issue. See Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54, appeal dismissed, Mastrangelo v. Pennsylvania, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Pritchard, 270 Pa. Super. 461, 411 A.2d 810 (1979).
Appellant suggests that the Commonwealth did not sustain its burden of proving the charges beyond a reasonable doubt. In Commonwealth v. Herman, 271 Pa. Super. 145, 412 A.2d 617 (1979), this court neatly summarized the test for ...