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decided: April 24, 1984.


No. 96 E.D. Appeal Docket, 1983, Appeal from the Order of the Superior Ct. at No. 3161 Philadelphia 1981, dated 3/31/83 Reversing the Order of the Court of Common Pleas, Philadelphia County at No. 81-08-3115. Pa. Super. , Papadakos, Justice. Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ., join in this opinion. Nix, C.j., filed a concurring opinion in which Larsen and Zappala, JJ., joined.

Author: Papadakos

[ 504 Pa. Page 409]


This is the appeal of Samuel Henley (Appellant) from the en banc Opinion and Order of the Superior Court, Commonwealth v. Henley, 312 Pa. Superior Ct. 564, 459 A.2d 365 (1983), which reversed a Philadelphia Common Pleas Order sustaining Appellant's demurrer to the evidence charging him with attempting to receive stolen property.

[ 504 Pa. Page 410]

The facts are not in dispute and can be easily summarized. Appellant is the owner of the Henley Brothers Jewelry Store located at 740 Samson Street in the City of Philadelphia. On December 22, 1980, an informant, wired with a tape recording device, was given five (5) specially coated chains by the police, and sent to Appellant's jewelry store. The informant entered the store and offered to sell the five (5) gold chains to Appellant. He represented to Appellant that the chains were stolen. Appellant, believing them to be stolen, purchased the chains for $30.00, took possession of them, and expressed a willingness to buy more stolen goods in the future. This conversation was recorded. The informant then left the store, met with the detective who had accompanied him, played the tape recording, and turned over the $30.00.

The detective then entered the store and arrested Appellant, charging him with the crime of theft by receiving stolen goods and receiving stolen property as a business. 18 Pa.C.S. Section 3925. These charges were later amended to attempted theft by unlawful taking or disposition, 18 Pa.C.S. Section 901, 3925, and he was tried on this charge at a non-jury trial on November 18, 1981.

At the conclusion of the Commonwealth's case, Appellant demurred to the evidence, arguing that the chains were not stolen property because they were in police custody, and that, therefore, he could not be found guilty of an attempt to receive stolen property which was not stolen. The trial court found this defense of legal impossibility persuasive and granted the demurrer.

The Commonwealth appealed to the Superior Court, which reversed and remanded for trial, concluding that the defense of legal impossibility had been abolished in Pennsylvania. Because this issue was one of first impression, we granted allocatur.

Impossibility defenses were usually classified as either legal or factual in nature. "Factual impossibility denotes conduct where the objective is proscribed by the criminal law but a circumstance unknown to the actor prevents him

[ 504 Pa. Page 411]

    from bringing it about. The classic example is the thief who picks an empty pocket." United States v. Conway, 507 F.2d 1047, 1050 (5th Cir; 1975). Legal impossibility was said to occur where the intended acts would not amount to a crime even if completed. A frequently cited case standing for this proposition is People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906). The Jaffe Court held that where an element of the completed crime required the goods be stolen, the fact that the goods were not stolen was a defense to the completed act. Consequently, an attempt to do an act which would not be criminal if completed could not itself be criminal regardless of the actor's intent. See United States v. Conway.

Factual impossibility has never been recognized as a defense to an attempt charge by any American Court, see State v. Logan, 232 Kan. 646, 656 P.2d 777 (1983), and this Court specifically rejected factual impossibility as a defense to an attempt charge in Commonwealth v. Johnson, 312 Pa. 140, 167 A. 344 (1933).

Legal impossibility had been recognized in many jurisdictions as a defense to attempt charges, and this Court cited the Jaffe case approvingly in Johnson, indicating that the defense of legal impossibility was available as a defense to attempt charges in this Commonwealth.

The reasoning in the Jaffe line of cases has come under considerable criticism in the last twenty-five years, and in response to the criticism the defense has been uniformly rejected by the highest courts of most states where the issue has been raised.*fn1 Additionally, many states have

[ 504 Pa. Page 412]

    passed legislation which specifically abrogated the defense.*fn2 The suggested abrogation of the impossibility defense through legislation was first introduced to ...

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