No. 188 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Division at No. 74 April Term, 1981.
Thomas I. Puleo, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Johnson and Popovich, JJ. Johnson, J. files a concurring statement.
[ 317 Pa. Super. Page 91]
This is an interlocutory appeal by the appellant, Kenneth Beaver, from the lower court's Order denying his "Motion to Dismiss Information on Double Jeopardy Grounds."*fn1 (Motion) We affirm.
An examination of the facts reveals the following: At a bench trial before the Hon. Victor J. DiNubile, Jr., the Commonwealth presented its case against the appellant on charges of Theft (18 Pa.C.S.A. § 3921) and Receiving Stolen Property (18 Pa.C.S.A. § 3925).
The first witness, Louise Patricia Long, testified that she resided at 8645 Rugby Street in Philadelphia with her husband and two children, Michelle and Scott. At approximately 6:30 p.m. on the 2nd of March, 1981, Mrs. Long left home, with Michelle and Scott remaining behind, to go to Bible school, but she did not take her purse containing $148.00. At about 9:30 p.m. she returned to discover that the money in her purse was gone. The children informed her that they were ignorant of its whereabouts or who might have taken it. Upon further inquiry, Michelle did admit appellant had been on the premises. This was confirmed by Scott, who told his mother appellant was alone in the house during the time he went to a neighbor's house to inform Michelle that appellant had arrived to see her. Michelle agreed with Scott, according to Mrs. Long, that "when Scott went to get her he [appellant] could have taken the money. He was left in the house alone." (RR. 14)
As for the missing "food processor" and her husband's two rifles, shotgun and pistol, Mrs. Long could shed no light on the circumstances attendant to their theft, except to mention that she discovered the former missing on March 5th and the latter gone on March 7th.
[ 317 Pa. Super. Page 92]
The next witness to testify for the Commonwealth was Mr. Long. He recounted how, after returning home from Oklahoma on the 7th of March, he had intentions of cleaning his P-38 pistol. When he went to the bedroom closet to retrieve it, he discovered it was gone, along with his other weapons. Mr. Long also stated he gave no one permission to remove the weapons from his home.
Following a series of questions as to when Mr. Long reported the theft to the police, an exchange occurred involving the witness, the trial judge and counsel for both sides that precipitated the mistrial motion; to-wit:
BY MR. INGRAM [Assistant District Attorney]:
Q. Did you talk to the defendant today about any of your firearms, sir?
A. In the Courtroom, about 10 o'clock.
MR. BANK [Appellant's counsel]: Objection, Your Honor.
THE COURT: Was the DA or any police officers around when you spoke to him?
MR. BANK: I would like an offer of proof.
Q. During this recess, was there a conversation with the defendant in the presence of defense counsel, and Mr. Moore who is here to present [sic] you Mr. Long?
A. There was conversation as to the possession of the weapons and who might have had them.
MR. BANK: I was there and my client did not make any statements, and I would like an offer of proof.
THE COURT: May I ask you this? Did you have any conversation with the defendant after you discovered the guns missing except for the conversation today --
[ 317 Pa. Super. Page 93]
Q. What was the conversation with the defendant today, sir? Will you tell the Court.
THE COURT: Overruled. You have an exception.
THE WITNESS: I told my lawyer --