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COMMONWEALTH PENNSYLVANIA v. EARL WILLIAM KUYKENDALL (08/26/83)

filed: August 26, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
EARL WILLIAM KUYKENDALL



No. 3 Harrisburg, 1982, Appeal from the Order of November 24, 1981 In the Court of Common Pleas of Mifflin County, Criminal Division, No. 55 of 1981.

COUNSEL

William A. Helm, District Attorney, Lewistown, for Commonwealth, appellant.

John B. Schaner, Lewistown, for appellee.

Cercone, President Judge, and Wickersham and Montemuro, JJ.

Author: Cercone

[ 318 Pa. Super. Page 430]

The Commonwealth here appeals from the order entered by the Court of Common Pleas of Mifflin County on November 24, 1981, granting appellee-defendant's Motion for Arrest of Judgment, following appellee's conviction in a trial by jury of Receiving Stolen Property. For the reasons detailed infra, the order of the lower court is vacated.

The evidence adduced by the Commonwealth at trial showed that appellant, together with his girlfriend, Dorothy Myers, drove to New York City in October, 1980 in appellant's blue, 1970 Chevrolet Monte Carlo Sport Coupe. The automobile sustained irreparable damage while being driven in the city by a friend of appellant who remains unidentified. Ms. Myers testified that appellant, upon learning of the demolition of his car in the accident, set out with some friends to steal a replacement vehicle in New York City. The men came upon a two-tone green, 1971 Chevrolet Monte Carlo Sport Coupe owned by Jaime Acosta of 251 Seaman Avenue, New York City. Ms. Myers stated that the men, having removed the metal plate containing the serial number from appellant's wrecked Monte Carlo, removed the serial number from the Acosta vehicle and replaced it with appellant's serial number which was then painted green in order to match the color of the stolen Acosta Monte Carlo. Appellant and Ms. Myers then drove the stolen car from New York City to their hometown of Lewistown, Pennsylvania where appellant was later arrested and charged with Theft By Receiving Stolen Property*fn1 and Dealing in Vehicles With Removed or Falsified Numbers.*fn2

[ 318 Pa. Super. Page 431]

Appellant proceeded to a trial by jury and, on May 22, 1981, was found guilty of Receiving Stolen Property and not guilty of Dealing in Vehicles With Removed or Falsified Numbers. Appellant's Motion For Arrest of Judgment in which he alleged, inter alia, that he could not be convicted of Receiving Stolen Property in Pennsylvania where the evidence adduced by the Commonwealth shows that he stole the property in New York and then brought the stolen article into Pennsylvania, was filed with the lower court on June 1, 1981. Following oral argument on the motion, the lower court entered an order,*fn3 dated November 24, 1981, arresting appellant's conviction by jury of Receiving Stolen Property. The Commonwealth now appeals from that order, arguing, contrary to the holding of the lower court, that an individual who commits a theft in another state and then brings the stolen goods into Pennsylvania and keeps them is susceptible of conviction for Receiving Stolen Property under Pa.C.S.A. 3925.

The apparent basis for the holding of the lower court was the case of Simmons v. The Commonwealth, 5 Binney 617 (1813), wherein our Supreme Court ruled that the defendant could not be tried for the substantive crime of theft in Pennsylvania where the stolen goods, in that case silverware, were originally misappropriated in Delaware and only later removed by the thief to Pennsylvania. We agree with the view espoused by the Commonwealth that Simmons is

[ 318 Pa. Super. Page 432]

    readily distinguishable from the case sub judice in that the instant defendant was charged and convicted in Pennsylvania not of Theft by Unlawful Taking*fn4 but rather of Theft by Receiving Stolen Property.*fn5 As a result, we believe the dispositive case is Commonwealth v. Farrar, 271 Pa. Superior Ct. 434, 413 A.2d 1094 (1979). Appellant Farrar was arrested and charged under Pennsylvania law with receiving stolen property, viz., two antique china closets and one antique table which she and her son and husband had unlawfully removed from a house in Rockville, Maryland and later transported to their home in Pennsylvania. In appealing from her conviction of theft by receiving stolen property, Farrar argued that the Pennsylvania trial court did not enjoy jurisdiction of the case since the crime was perpetrated before she and her family moved to Pennsylvania, and that once she received and retained the stolen goods in Maryland, the offense terminated. Writing for a unanimous panel of our Court, Judge Spaeth rejected appellant's argument and noted that in prior cases "we have suggested that the legislature's inclusion of a prohibition against retaining and disposing of stolen property makes this offense 'ongoing.'" Id., 271 Pa. Superior Ct. at 442, 413 A.2d at 1098 (citations omitted). Consequently, we accord no significance to the fact that the stolen car in the case at bar was originally received and retained by unlawful means in the State of New York.

In its order of November 24, 1981, in which it arrested appellee's judgment of conviction, the lower court ruled that "one cannot be convicted ...


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