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filed: June 3, 1983.


No. 2071 Philadelphia 1981, Appeal from the Judgment of Sentence of July 13, 1981, in the Court of Common Pleas of Delaware County, Criminal at No. 3998 - 80


John F.X. Morley, Jr., Assistant Public Defender, Media, for appellant.

Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.

Spaeth, Rowley and Cirillo, JJ. Rowley, J., files a concurring statement.

Author: Spaeth

[ 315 Pa. Super. Page 87]

This is an appeal from judgments of sentence for retail theft, theft by unlawful taking, and criminal conspiracy.*fn1 Appellant argues: (1) that his convictions were against the evidence and the weight of the evidence; (2) that the trial court erred in admitting appellant's statement into evidence; and (3) that the motion court erred in granting the Commonwealth leave to add to the original charges the charge of theft by unlawful taking. The first two arguments are without merit. On the third argument, however, we hold that when an offense is within both the general statutory provisions against theft by unlawful taking and the specific statutory provisions against retail theft, the offender may be prosecuted only for retail theft. It was therefore error to grant the Commonwealth leave to add the charge of theft by unlawful taking. Accordingly, we vacate the judgments of sentence for theft by unlawful taking, but affirm the

[ 315 Pa. Super. Page 88]

    judgments of sentence for retail theft and criminal conspiracy.


The evidence may be summarized as follows. On July 21, 1980, Gail McNeal, a night-time supervisor of the jewelry department of the Strawbridge & Clothier store in Springfield, Pennsylvania, saw appellant and another man, later identified as Victor O'Connor, at one of the jewelry counters without a store attendant assisting them. Because "[t]heir eyes kept moving around like they were looking to see if anybody was watching them," McNeal became suspicious and notified store security. N.T. at 6. Joseph Read, a Springfield Township Police Officer who worked part-time as a Strawbridge & Clothier security detective, responded to McNeal's call. Id. at 18. He saw appellant help O'Connor lift the glass top of a jewelry case with a knife-like object, and hold the top open while O'Connor reached in and took out several pieces of jewelry and put them in a brown canvas bag. Id. at 23-27. Read alerted another store detective, Martin Wusenic, and proceeded to follow appellant and O'Connor as they left the store. Id. 27-28. Appellant and O'Connor split up and ran in different directions. Read and Wusenic caught O'Connor, id. at 31 & 62, and took him to the security office. There the bag he had been carrying was found to contain several pieces of jewelry, each with the Strawbridge & Clothier sticker still on it. Id. at 32-33. The total value of the jewelry was $11,115. Id. at 34. O'Connor told Read his name and address, and described his vehicle as a blue Volkswagen. Id. at 36-37. Upon hearing this, Wusenic went out to look for appellant. Id. at 66. He found appellant standing by a blue Volkswagen beetle. Id. 66-68. When Wusenic called to him, appellant started to run away. Wusenic pursued, identified himself, drew his gun, and ordered appellant to halt. Id. at 69. Appellant did halt, and was taken to the security office. Id. As Wusenic and appellant entered the office, appellant "made a statement [Wusenic testified] to the O'Connor

[ 315 Pa. Super. Page 89]

    subject to the effect that I was going to come back in for you, man." Id. at 73.

Appellant's argument that his convictions were "against the evidence and the weight of the evidence," Brief for Appellant at 3, 11-12, is without merit. Appellant argues that he could not be convicted because "no jewelry was found on him nor was there an implement useful for committing a crime," and because the evidence "fail[ed] to establish that [he] took possession of, carried away, transferred or caused to be carried away, or transferred" any jewelry. Brief for Appellant at 11. This argument ignores Read's testimony that he saw appellant help O'Connor take the jewelry by holding the jewelry case open. This was sufficient evidence that appellant was O'Connor's accomplice and therefore guilty of O'Connor's offense. See 18 Pa.C.S. ยง 306(b)(3) & (c). See also Commonwealth v. Bridges, 475 Pa. 535, 381 A.2d 125 (1977).


Appellant's argument that Wusenic should not have been allowed to testify to what appellant said to O'Connor in the security office ("I was going to come back in for you, man") is also without merit. Appellant now argues that this "was a potentially inculpatory [statement] made beyond the scope of any conspiratorial relationship that might once have existed." Brief for Appellant at 13. We assume from this argument that appellant challenges the statement as hearsay not admissible under the exception allowing proof of statements between co-conspirators during and in furtherance of their conspiracy. At trial, however, defense counsel only objected to Wusenic's characterization of what appellant said to O'Connor as "a statement." The argument now made, that the statement was inadmissible hearsay, has therefore been waived. Pa.R.App.P. 302(a). But in any case, the statement was not hearsay. It was instead a "verbal act," for its utterance was proof of the fact that appellant knew O'Connor. Appellant's knowing O'Connor was a relevant fact because it

[ 315 Pa. Super. Page 90]

    tended to prove that appellant and O'Connor had acted together. The truth of the utterance -- whether appellant did intend to come back for O'Connor -- was not at issue. See generally McCormick on Evidence 588-90 (2d ed. E. Cleary 1976).


Appellant was originally charged with retail theft, receiving stolen goods, criminal attempt, disorderly conduct, and conspiracy. On the Commonwealth's motion, the lower court granted the Commonwealth leave to add the charges of theft by unlawful taking and receiving stolen goods. At trial, the lower court, sitting without a jury, granted a demurrer to the charge of disorderly conduct, but at the conclusion of the evidence, it convicted appellant of the other charges. In announcing its verdict, the court stated that the charges of receiving stolen goods and criminal attempt merged with the theft charges, "So, that in effect, you have been found guilty of Retail Theft and Theft by Unlawful Taking and Criminal Conspiracy the subject of which was in excess of $2000.00." Verdict, n. T. 3. At sentencing, the court imposed a sentence of two to five years in prison, with appellant to make restitution and pay costs ...

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