No. 273 Pittsburgh 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal at No. 717 of 1980.
Douglas James Wright, Girard, for appellant.
Michael J. Veshecco, District Attorney, Erie, for Commonwealth, appellee.
Spaeth, Brosky and Johnson, JJ.
[ 317 Pa. Super. Page 110]
This is an appeal from a judgment of sentence for theft and criminal conspiracy. Appellant argues that the lower court erred in refusing to grant his motion in arrest of judgment.*fn1 We agree and therefore vacate the judgment of sentence and order appellant discharged.
The charges arise from a theft of jewelry. At the close of the Commonwealth's case, counsel for appellant demurred to the evidence. When the trial judge overruled the demurrer, counsel offered no evidence. The jury returned a verdict of guilty on both counts -- theft by unlawful taking, and criminal conspiracy.
On September 25, 1980, appellant filed a "boiler-plate" Motion for New Trial and/or Arrest of Judgment,*fn2 and on December 2, 1980, a Supplement to the Motion stating that "[i]t was error for the trial court to refuse to grant the defendant's demurrer to the Commonwealth's evidence presented in this case as to the charges of Conspiracy and Theft by Unlawful Taking." On December 9, 1980, the
[ 317 Pa. Super. Page 111]
lower court denied the Motion for New Trial and/or Arrest of Judgment, and on February 6, 1981, imposed sentence.
The Commonwealth argues that appellant has waived his argument that the lower court erred in refusing to grant his demurrer because of his "failure to specifically raise this issue and the grounds for it in his post-verdict motion." Brief for Commonwealth at 1, 3-5. In the course of this argument the Commonwealth states that "appellant in this case did not file any additional or supplemental reasons in writing in addition to this Motion [ i.e., the "boiler-plate" motion]." Id. at 3. This statement is contradicted by the record, which, as we have just indicated, contains a Supplement to the Motion, assigning as error the lower court's refusal to grant appellant's demurrer. In any event, we have recently held that a boiler-plate motion preserves a general claim of insufficiency, Commonwealth v. Holmes, 314 Pa. Super. 611, 461 A.2d 872 (1983) (boiler-plate motion held in compliance with Pa.R.Crim.P. 1123; also held, such motions will not be in compliance with rule if filed 60 days after June 10, 1983).
In deciding whether the evidence was sufficient to support appellant's conviction, we must regard the evidence in the light most favorable to the Commonwealth. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981); Commonwealth v. Galloway, 302 Pa. Super. 145, 448 A.2d 568 (1982). So regarded the evidence may be summarized as follows.
On February 22, 1980, sixteen diamond rings, worth $11,700 retail, were stolen from the jewelry department of Kaufmann's Department Store in Erie. The rings were on display in a case with a glass top. The thief, or thieves, pried open the glass top with some sort of sharp instrument, separating the top from the metal frame to which it was glued, and then reached inside the display case. No one saw the theft occur; the evidence that appellant was the thief was circumstantial.
[ 317 Pa. Super. Page 112]
The principal Commonwealth witness was Marianne Trott. She was the sales clerk on duty in the jewelry department on February 22d. At about 6:30 p.m., appellant and a female companion entered. Ms. Trott offered to show them some items, but they said they were just looking. Ms. Trott followed them around, and after "about fifteen or twenty minutes," N.T. 22, 81, they left. "[W]ithin a half hour," id. at 9, they returned. Ms. Trott didn't "go right over to them again because they said they weren't buying," id., but she saw them go over to the diamond case, id. She "could kind of see them leaning over [the case]," id. at 10, with "their heads together," id. at 11. Ms. Trott said she "[didn't] remember what happened after that," id. at 9, but that appellant and his companion "must of left" because "about a half hour later," id. at 10, while waiting on another customer she "happened to glance at the [diamond] case" and saw that "[t]he rings weren't there and I knew they had to be there because they were there when I came into work," id.
Upon discovering the loss, Ms. Trott called William Buesink, the Kaufmann's security manager. He checked the contents of the diamond case against the "inventory of the diamonds . . . put in the case at the beginning of the day, and . . . checked that against the receipts," id. at 49, and determined that sixteen diamond rings were missing, id. Officer Richard Figaski arrived at the store "shortly after 7:00 p.m." Id. at 37. He examined the diamond case, and determined from scratch marks on the metal frame and the glass top that the top had been pried loose with some sort of sharp instrument. The marks "were fairly clean in that there was no dirt accumulated in them and fairly shiny marks ...