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COMMONWEALTH PENNSYLVANIA v. ANDRE HOGAN (11/10/83)

filed: November 10, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ANDRE HOGAN, APPELLANT



No. 3021 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 1318 July, 1981.

COUNSEL

Karl Baker, Assistant Public Defender, Philadelphia, for appellant.

Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Hester, Cavanaugh, Wickersham, Rowley, Wieand and Popovich, JJ.

Author: Wieand

[ 321 Pa. Super. Page 311]

The sole issue in this appeal is whether evidence of the unexplained operation of a motor vehicle by an unlicensed person twenty-eight days after the vehicle had been stolen was sufficient to sustain a conviction of that person for unauthorized use of the vehicle.

On May 1, 1981, a 1973 Oldsmobile owned by Harry Sherman was stolen in Elkins Park, Montgomery County. On May 29, 1981, Andre S. Hogan was stopped by Officer Dale Braun when Hogan drove the stolen Oldsmobile through a red traffic signal at Limekiln Pike and Haines Road in Philadelphia. When requested to do so by the arresting officer, Hogan was unable to produce the owner's card or a driver's license. An official inquiry disclosed that the vehicle had been stolen, and Hogan was arrested and charged with theft by receiving stolen property and unauthorized use of a vehicle. The owner did not know Hogan and had not granted him permission to use the vehicle. Hogan was tried before a court sitting without a jury, and

[ 321 Pa. Super. Page 312]

    on the basis of such evidence was found guilty of unauthorized use of an automobile.*fn1 Post-trial motions were denied,*fn2 and a fine and sentence of probation were imposed. Hogan appealed. We affirm.

"'The test of sufficiency of the evidence -- irrespective of whether it is direct or circumstantial, or both -- is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the [trier of fact] could properly have based [the] verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.'" Commonwealth v. Minoske, 295 Pa. Super. 192, 198, 441 A.2d 414, 417 (1982) quoting Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969). Accord: Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983); Commonwealth v. Wilcox, 310 Pa. Super. 331, 336, 456 A.2d 637, 639 (1983). In reviewing the evidence, we must consider it in the light most favorable to the Commonwealth, which won the verdict in the trial court. Commonwealth v. Durrant, 501 Pa. 147, 151, 460 A.2d 732, 733 (1983); Commonwealth v. Bachert, 499 Pa. 398, 402-03, 453 A.2d 931, 933 (1982); Commonwealth v. Kennedy, 499 Pa. 389, 392-93, 453 A.2d 927, 928 (1982).

The offense of unauthorized use of an automobile is defined at 18 Pa.C.S. ยง 3928 as follows:

(a) Offense defined. -- A person is guilty of a misdemeanor of the second degree if he operates the automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle of another without consent of the owner.

(b) Defense. -- It is a defense to prosecution under this section that the actor reasonably believed that the owner would have consented ...


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