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

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 ...


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