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COMMONWEALTH PENNSYLVANIA v. CLAIR P. MYER (03/08/85)

filed: March 8, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
CLAIR P. MYER, APPELLANT



NO. 03276 PHILADELPHIA 1982, Appeal from the Judgment of Sentence of November 17, 1982, in the Court of Common Pleas of Lancaster County, Criminal Division, at No. 762 of 1981.

COUNSEL

O. Howard Mummau, Manheim, for appellant.

McEwen, Cirillo and Beck, JJ.

Author: Beck

[ 340 Pa. Super. Page 180]

Arthur Conan Doyle might have captioned this appeal "The Case of the Counterfeit Clock." Appellant Clair Myer was convicted of the offense of simulating objects of antiquity or rarity, 18 Pa.C.S. ยง 4102, in connection with the alteration and sale of an antique grandfather clock. He was sentenced to one year's probation. For the reasons stated below we affirm.

Appellant raises the following issues on appeal:

(1) Whether the court erred in refusing to grant appellant's motion in arrest of judgment on the grounds that the weight of the evidence does not support the verdict;

(2) Whether the court should have granted a new trial because the jury was improperly instructed as to the elements of the offense;

(3) Whether the court erred in denying appellant's requests for evidentiary hearings on ineffective assistance of counsel and on allegedly perjured testimony of the principal Commonwealth witness, and

(4) Whether the court should have granted a new trial because appellant was prejudiced by the prosecutor's improper questioning of a Commonwealth witness concerning his religious belief.

[ 340 Pa. Super. Page 181]

Although appellant's first assignment of error is framed in terms of the weight of the evidence, his contention that the trial court should have granted his motion in arrest of judgment is properly treated as a claim that the evidence was insufficient as a matter of law to support the verdict. In reviewing such a claim, we follow the familiar rule that we must view all the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth, and determine whether the evidence so viewed is sufficient for the trier of fact to find each element of the crime charged beyond a reasonable doubt. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983); Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth Page 181} v. Klimkowicz, 331 Pa. Super. 75, 82, 479 A.2d 1086, 1089 (1984).

Viewed according to the foregoing standard, the evidence adduced at trial established the following. In 1971 appellant purchased an antique grandfather clock at a house sale in Lancaster County. At the time of purchase, the clock had no indication whatsoever on it of the name of its maker. In 1974, appellant decided to restore the clock. He contacted Mr. Stacy Wood, who was in the business of repairing and restoring antique clocks. Mr. Wood proceeded to work on the clock. In the course of the restoration, the clock was disassembled and Mr. Wood found no maker's name on any part of the clock.

The task of repainting the dial of the clock was referred to Mr. Donald Wendling of Macungie, Pennsylvania. Appellant then met with Mr. Wendling to select a design for the clock dial. Appellant instructed Mr. Wendling to add the name Joseph Eberman to the dial. Joseph Eberman was a noted clockmaker in Lancaster County in the early nineteenth century. Mr. Wendling painted the dial as appellant instructed, but he added the words "repainted August of 1974," "name added" and "D.J.W." on the backside of the dial. This was not done at appellant's request; it was Mr. Wendling's practice when no maker's name was found on the clock. When the clock was reassembled, these inscriptions on the back of the dial were partially obscured. Upon returning the restored clock to appellant, Mr. Wood noted on the bill " no name of maker found on plate dial or false plate" (emphasis in original).

On February 14, 1981, appellant placed a classified advertisement in the Lancaster County Intelligencer Journal under the classification "Antiques & Reproductions." The advertisement read as follows:

Eight day Joseph Eberman cherry tall case clock, scroll, top moon dial. Thirty hour George Hoff walnut tall case ...


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