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COMMONWEALTH PENNSYLVANIA v. CHARLES F. JOHNSON (03/01/85)

filed: March 1, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
CHARLES F. JOHNSON, APPELLANT



No. 02586 Philadelphia, 1982, Appeal from Judgment of Sentence, Court of Common Pleas, Criminal Division, Chester County, No. 1415-80

COUNSEL

Marsha A. McClellan, Assistant Public Defender, West Chester, for appellant.

James R. Freeman, District Attorney, West Chester, for Commonwealth, appellee.

Cavanaugh, Wieand and Cirillo, JJ. Wieand, J., files dissenting opinion.

Author: Cavanaugh

[ 340 Pa. Super. Page 28]

The appellant, Charles F. Johnson, was found guilty in the Court of Common Pleas of Chester County of unauthorized use of a motor vehicle, theft by receiving stolen property, and theft by unlawful taking. Appellant's motions for new trial and in arrest of judgment were denied and appellant was sentenced. This is an appeal from that judgment of sentence. We affirm.

Appellant's convictions stemmed from an incident that occurred on August 16, 1980 at approximately 3:30 A.M. The appellant was sitting behind the wheel of a pickup truck that was "hung up" on a guardrail partially blocking a roadway. When the police approached, the defendant slid out of the truck through the driver's side door. Because of its position against the guardrail, it was impossible to get out of the truck through the passenger door. Although the pickup was without power and totally inoperable, the key was in the ignition.

When questioned by the police, the appellant stated that he was walking and he went to give another person help getting the truck in gear. However, the appellant was unable to give police a description of this other individual

[ 340 Pa. Super. Page 29]

    even though he later testified that he had known this person for fifteen years. The appellant told the police that the other individual left the scene through the nearby woods.

On appeal, Johnson argues that the evidence was insufficient to prove guilt beyond a reasonable doubt; that the trial court erred in admitting evidence of appellant's prior convictions for unauthorized use of a motor vehicle; and that it was improper for the prosecutor to characterize appellant's statements to the police as a "story."

The statute defining unauthorized use of an automobile, 18 Pa.C.S. ยง 3928, makes it an offense if the actor "operates" a motor vehicle without the consent of the owner. The appellant points out that at the time the police observed him behind the wheel, the truck was not running, its lights were not on, and it appeared to be out of commission. Consequently, appellant claims, the Commonwealth failed to show he was "operating" the truck for purposes of the statute, since there wasn't any direct evidence that appellant was actually operating the vehicle in motion.

As the lower court correctly points out, however, the Commonwealth is not required to prove that the appellant was operating the vehicle in motion. The Commonwealth need only show that the defendant was in the vehicle behind the wheel and had control and management of it. Commonwealth v. Taylor, 237 Pa. Super. 212, 352 A.2d 137 (1975). In addition, the evidence in this case is sufficient to permit an inference that the pickup truck got where it was and in the condition it was in because the appellant had control over it. Commonwealth v. Kloch, 230 Pa. Super. 563, 327 A.2d 375, 384 (1974). We are satisfied that the jury had sufficient evidence to find that appellant did "operate" the vehicle within the meaning of the statute.

Appellant also contends that there was insufficient evidence to support his convictions for receiving stolen property and theft by unlawful taking. These claims were correctly

[ 340 Pa. Super. Page 30]

    dismissed by the lower court and do not merit any further discussion.

The next issue raised by appellant concerns whether or not the lower court properly admitted evidence of appellant's prior convictions for unauthorized use of motor vehicles. The decision to admit evidence of prior convictions is within the discretion of the trial judge, whose decision will not be reversed absent an abuse of discretion. Commonwealth v. Roots, ...


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