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COMMONWEALTH PENNSYLVANIA v. KEVIN BYERS (06/07/83)

submitted: June 7, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN BYERS, APPELLANT



NO. 1123 PITTSBURGH 1981, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal No. 8008923

COUNSEL

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth and Hester, JJ.

Author: Spaeth

[ 320 Pa. Super. Page 225]

This is an appeal from a judgment of sentence for receiving stolen property. Appellant argues that the evidence was insufficient, and that trial counsel was ineffective. Finding these arguments without merit, we affirm.

-1-

The test of sufficiency is whether, after viewing the evidence in the light most favorable to the Commonwealth, and then drawing all reasonable inferences favorable to the Commonwealth, the trier of fact could find that every element of the crime charged had been proved beyond a reasonable doubt. Commonwealth v. Russell, 313 Pa. Super. 534, 460 A.2d 316 (1983).

Here, the evidence was as follows: On the morning of December 10, 1980, Mary S. Verbanets discovered that her restaurant-bar-hotel (the "120 Bar") had been burglarized. N.T. 10-11. Among the items taken were a color television set, a clock radio, some 700 packs of cigarettes and assorted change from a cigarette machine, liquor, food, and prophylactics and assorted change from two coin-operated machines. Id. at 13-14. Mrs. Verbanets reported the burglary to the police, and on the basis of information provided by an informant, they got a warrant to search a certain apartment that evening. In the apartment they found the items taken in the burglary. N.T. 53-59.*fn1 During the search of the apartment a police officer saw mail addressed to appellant and prescription vials bearing his name. Id. at 61-62. Several hours later, at about 1:30 a.m., the police found appellant, with another man, in the

[ 320 Pa. Super. Page 226]

    apartment, and arrested him. Id. at 72. Several days after his arrest, appellant, who had been released on bail, went to the 120 Bar and gave Mrs. Verbanets a paper bag containing prophylactics and a set of keys belonging to the bar. Id. at 35-41.

We think this evidence was sufficient to prove theft by receiving stolen property. The Commonwealth made out its case if it proved that appellant had control of property that he knew had been stolen. 18 Pa.C.S.A. ยง 3925. Mrs. Verbanets's testimony showed that property had been stolen. The trier of fact -- a judge sitting without a jury -- could reasonably infer from the evidence regarding the nature of the property and when and where it was found that appellant knew it had been stolen. (How else did appellant suppose it had gotten to the apartment?) The trier of fact could also find from the police officer's testimony, that appellant was in the apartment at 1:30 a.m. and that mail and prescriptions with his name on them were there, that the apartment was appellant's, and from that evidence the trier could reasonably infer that appellant had control of the stolen property. The trier could also find control from the evidence that appellant had returned some of the stolen property.*fn2 While some of the evidence was circumstantial, the Commonwealth was entitled to prove its case by circumstantial evidence, Commonwealth v. Axe, 285 Pa. Super. 289, 427 A.2d 227 ...


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