No 2392 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Montgomery County at No. 59 of 1980.
Douglas M. Johnson, Assistant Public Defender, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Spaeth, Montgomery and Lipez, JJ. Montgomery, J., files a dissenting statement.
[ 305 Pa. Super. Page 51]
Appellant was convicted by a judge of receiving stolen property and retail theft and was sentenced to a minimum of two years and a maximum of four years imprisonment. He argues on appeal, inter alia, that the lower court erred in admitting his oral confession before the Commonwealth had proved the corpus delicti of the crime. We agree, and therefore grant appellant a new trial.*fn1
The corpus delicti must be proved before a confession may be admitted into evidence. Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980); Commonwealth v. Daniels, 281 Pa. Superior Ct. 334, 422 A.2d 196 (1980). The reason for this requirement is "rooted in a hesitancy to convict one of crime on the basis of his own statements only." Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974).
To prove the corpus delicti, the Commonwealth must show that an injury or loss has occurred, and that criminal activity caused the injury or loss. Commonwealth v. Ware, supra. Proof that the accused was the perpetrator of the crime is not required. Commonwealth v. Turza, 340 Pa. 128, 16 A.2d 401 (1940). The corpus delicti may be proved by circumstantial evidence. Commonwealth v. Brogan, 270 Pa. Superior Ct. 197, 411 A.2d 248 (1979). What constitutes sufficient circumstantial evidence has been defined by the Supreme Court as follows:
[ 305 Pa. Super. Page 52]
Although independent corroborative evidence is insufficient if it is equally as consistent with accident as with crime, Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967), the prosecution has no duty to exclude the possibility of an accident in order to establish the corpus delicti. Commonwealth v. Moore, 466 Pa. 510, 515, 353 A.2d 808, 810 (1976) [other citations omitted].
Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173, 179 (1980).
The Commonwealth sought to prove the corpus delicti by the testimony of Linda Jackson. (Its only other witness was the detective who took appellant's statement.) Ms. Jackson's testimony may be summarized as follows: She is the manager of the furniture department at one of the Lord & Taylor stores. As manager she must keep track of items coming into and leaving the furniture department, which encompasses the rug department, and make "audits" of the inventory every six months. N.T. 4/21/80, 7-8. The rug department received the rug in question, style number 2B121, on October 6, 1977. Id. 10. She conducted an audit on June 27, 1979, and again on January 5, 1980. Id. 11-12. She testified, and the inventory sheets admitted into evidence showed, that the rug in question appeared at the June audit but not at the January audit. Id. 9-12. She also testified that other items were missing from the January audit but that "they have since been located at another Lord & Taylor store." Id. 15.
The Commonwealth argues that "the logical inference which arises from Ms. Jackson's testimony is that someone stole the rug in question." Appellee's Brief at 5. Under the test stated in Commonwealth v. Byrd, supra, this would mean that the inferences from Ms. Jackson's testimony are not "equally as consistent with accident as with crime." In other words, under Byrd the Commonwealth is not entitled to draw an inference that the rug ...