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COMMONWEALTH PENNSYLVANIA v. CLAYTON DAVID THOMAS (10/01/82)

filed: October 1, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
CLAYTON DAVID THOMAS, APPELLANT



No. 276 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Delaware County, at No. 319B Count 2, 319C March Term, 1976.

COUNSEL

Roy Davis, Assistant Public Defender, Media, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.

Cercone, President Judge, and Montemuro, and Van der Voort, JJ.

Author: Cercone

[ 305 Pa. Super. Page 159]

This is a direct appeal from judgment of sentence of three to six years and one to two years concurrent imprisonment imposed on appellant following his conviction on charges of receiving stolen property,*fn1 and the unauthorized use of an automobile.*fn2

[ 305 Pa. Super. Page 160]

In the late evening of February 1 on the early morning hours of February 2, 1976 the Delaware County home of Christos Voulgaris was burglarized by persons unknown. Taken from Mr. Voulgaris' house were a radio, a jacket containing the keys to his beige 1975 Monte Carlo and the car's purchase order. The car, which had been parked on the street in front of the house, was also missing.

At 4:45 a.m. on February 3, 1976 officers of the Montgomery County community of Lower Merion were summoned to investigate a disturbance of the nocturnal peace. The officers found human footprints in the snow outside the house whence came the call for help. The depressions in the snow suggested that the person who passed there had been running. They followed the tracks for a half mile in the pre-dawn darkness. Where the tracks ended they found appellant cowering in the bushes. He was arrested on the spot. Subsequent investigation turned up a set of keys in the snow near the trail of footprints. Not far from the house the police found Mr. Voulgari's automobile. A search of appellant's person revealed the purchase order for the stolen Monte Carlo.

On a warrant issued by a Delaware County district justice, appellant was arrested on February 11 in the Montgomery County jail. He was given a preliminary hearing in Delaware County on February 20 and held for court on $25,000 bail. The Delaware County district attorney filed informations against appellant on March 26 charging him with burglary, theft by unlawful taking, theft by receiving stolen property and the unauthorized use of an automobile. Appellant filed no pre-trial motions, and stood mute at arraignment, whereupon a plea of not guilty was entered on his behalf. He waived jury trial and was tried by the court without a jury on July 21. At the close of the Commonwealth's case appellant demurred, which demurrer was first granted and then denied following objection by the Commonwealth. Appellant presented no defense. The court

[ 305 Pa. Super. Page 161]

    thereupon found appellant not guilty on the burglary and theft charges, and guilty of receiving stolen goods and unauthorized use of an automobile.

Immediately after this finding of guilt appellant conferred with his trial counsel.*fn3 Without the trial court's compliance with Rule 1123(b) and (c) of the Rules of Criminal Procedure*fn4 trial counsel moved for immediate sentencing and without first making any oral or written post-trial motions. The court refused the motion and ordered a presentence report. Two months later appellant was sentenced to three to six years on the stolen ...


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