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COMMONWEALTH PENNSYLVANIA v. EARL T. KELLY (06/11/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: June 11, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
EARL T. KELLY, APPELLANT

No. 1788 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 5646 of 1979.

COUNSEL

Edward F. Kane, Norristown, for appellant.

David McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Wickersham, Wieand and McEwen, JJ.

Author: Wieand

[ 300 Pa. Super. Page 453]

Can the crime of theft by receiving stolen property be committed by a person who retains possession thereof after he or she has acquired knowledge or reason to believe that such property has been stolen even though the initial possession thereof was acquired innocently? This is the principal issue raised in this appeal following conviction for theft by receiving a stolen piece of equipment known as a Case Backhoe. The trial judge instructed the jury that the crime could be committed by appellant even if he came into possession of the stolen equipment innocently if subsequent thereto he learned that the equipment had been stolen and nevertheless retained possession. We agree that this instruction was correct, and, because appellant's remaining contentions are without merit, we affirm the judgment of sentence.

In November, 1978, a Case Backhoe, owned by Danella Equipment Rental and valued at $38,000.00, was stolen from

[ 300 Pa. Super. Page 454]

    a site where work was being done for Philadelphia Electric Company. On October 20, 1979, police found the stolen backhoe on premises of Globe Disposal Company in Montgomery County.*fn1 Earl T. Kelly, the owner of Globe Disposal Company and the appellant herein, told police that an unknown male person had requested and obtained permission to leave the backhoe on the premises because it was not functioning properly. The backhoe was left on Kelly's premises in January or February, 1979, and remained there until the police found it. Other evidence was produced from which a jury could infer that in the interim appellant acquired reason to believe that the backhoe had probably been stolen.*fn2

Section 3925 of the Crimes Code provides:

A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

The trial court read this section to the members of the jury and then instructed them as follows:

Well, members of the jury, this can be a continuing offense. In other words, we think of this offense normally in terms of one who receives property, knowing at the time he received it, that it was stolen property.

The common sense is the classic example of that. But there are other varieties of committing this offense.

[ 300 Pa. Super. Page 455]

If, for an example, you receive property, and you don't know it's stolen, but thereafter you either learn that it was stolen, or you have reasonable grounds to believe that it was probably stolen, and you do nothing about it, and continue to retain the property, you are still guilty of this offense.

Appellant contends that this instruction was erroneous. He argues that in order to convict of theft by receiving stolen property, the Commonwealth must prove that the accused had guilty knowledge when the property was received.

Knowledge that property has been stolen or a belief that it has probably been stolen is an essential element of the crime of receiving stolen property. Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973). However, the necessary mens rea may arise following actual receipt of the property; it need not exist at the very moment of reception. The statute, by its express terms, makes it criminal to "receive, retain or dispose" of stolen property. Thus, a person may be found guilty of receiving stolen property if he intentionally retains property of another knowing, or having reasonable cause to know, that it has been stolen. He retains it if he "hold[s] or continue[s] to hold [the stolen property] in possession or use." Websters Third New International Dictionary, 1965.

In Commonwealth v. Farrar, 271 Pa. Super. 434, 413 A.2d 1094 (1979), a panel of this Court was asked to consider the nature of the offense in order to determine (1) whether the courts in Pennsylvania had jurisdiction to try a defendant who had received stolen property in Maryland before moving, with the goods, into Pennsylvania, and (2) the act which triggered the running of the statute of limitations. The Court held that the retention of stolen property is a "continuing" offense which does not terminate until the stolen property is taken from the accused. See also Commonwealth v. Hawkins, 294 Pa. Super. 57, 64, 439 A.2d 748, 752 (1982); Williams v. Superior Court of Los Angeles County, 81 Cal.App.3d 330, 146 Cal.Rptr. 311 (1978); State v. Raffone, 161 Conn. 117, 123, 285 A.2d 323, 327 (1971); People v. Dickerson, 21 Ill.App.3d 977, 983, 316 N.E.2d 519, 525 (1974),

[ 300 Pa. Super. Page 456]

    you, the defendant has acknowledged that he had possession of it.

There was no error in this comment. The evidence, particularly appellant's oral and written statements,*fn3 supported the trial judge's implied suggestion that possession was not the controlling issue in the case. It is properly the function of the trial judge to define and frame for the jury those factual issues which are contested and which require the weighing of conflicting evidence. In order to achieve this, it is frequently advisable to suggest less significance regarding issues where the evidence is not in dispute. Thus, it had been said:

Commonwealth v. Nesbitt, 276 Pa. Super. 1, 6, 419 A.2d 64, 67 (1980). With respect to appellant's possession of the back-hoe, the trial judge called to the jury's attention appellant's admission but, nevertheless, left the issue of appellant's possession to the jury. There was no error in such an instruction.

Finally, appellant argues that the Commonwealth failed to prove that he was the Earl T. Kelly named in the

[ 300 Pa. Super. Page 458]

    information. There is no merit in this argument. Identity of name is prima facie evidence of identity of person. Commonwealth v. Cover, 281 Pa. 429, 434, 126 A. 786, 788 (1924); Commonwealth v. Burton, 164 Pa. Super. 158, 161, 63 A.2d 508, 509 (1949). In the absence of a denial, this presumption is sufficient to submit the issue of defendant's identity to the jury. Commonwealth v. Burton, id., 164 Pa. Super. at 161-162, 63 A.2d at 509. Cf. Commonwealth v. King, 455 Pa. 363, 316 A.2d 878 (1974). In the instant case, moreover, there was evidence of appellant's identity as the person named in the information. Detective DeHaven repeatedly and interchangeably referred to "the defendant" and "Mr. Kelly." He testified that "the defendant" was the man with whom he spoke at the Globe Disposal premises, that he informed "Mr. Kelly" of his intention to cause a criminal complaint to be issued, that "the defendant" gave him a written statement, and that he observed "the defendant" sign the statement. Detective DeHaven further stated that the handwriting on the statement was that of "Mr. Kelly." This evidence was more than sufficient to establish the identity of appellant as the Earl T. Kelly who was in possession of the machine and who was named in the information.

The judgment of sentence is affirmed.


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