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COMMONWEALTH PENNSYLVANIA v. AARON DUNLAP (06/21/85)

submitted: June 21, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
AARON DUNLAP, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 84-08-0220, 0221.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Brosky, Watkins and Hoffman, JJ.

Author: Brosky

[ 351 Pa. Super. Page 45]

This appeal is from the judgment of sentence imposed after appellant was found guilty in a non-jury trial of receiving stolen property and unauthorized use of automobiles and other vehicles.

Appellant contends that the evidence was insufficient to support his convictions on these crimes and that the crimes should have been merged for sentencing purposes. We agree with appellant's first contention and, accordingly, reverse the judgment of sentence and discharge appellant.

"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.'" 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. Hogan, 321 Pa. Super. 309, 312, 468 A.2d 493, 495 (1983) (citations omitted).

[ 351 Pa. Super. Page 46]

In the instant case, the Commonwealth presented two witnesses at trial. The first witness, Cleon Scoggins, testified as follows. On July 27, 1984, he observed appellant driving an automobile in the 4500 block of Garnet Street in Philadelphia. Appellant parked the automobile and walked away from the area. Scoggins recognized the automobile as belonging to the complainant, Louise Johnson, because Scoggins had previously done repair work on it. Scoggins thereafter located Mrs. Johnson and returned with her to the parked automobile just as uniformed police officers in a marked car were arriving at the scene. Mrs. Johnson then confirmed that she did own the car. Appellant returned to the automobile within ten or fifteen minutes of his initial departure and asked one of the officers "what was the matter." The officer then asked appellant whether appellant had been driving the car and when appellant answered in the affirmative, he was arrested.

The other witness presented by the Commonwealth, Louise Johnson, testified to the following. On July 18, 1984, her 1974 Camaro was missing from 29th and Chestnut Streets in Philadelphia. She next saw her car nine days later at appellant's arrest. At the time of the arrest Johnson saw police confiscate her car keys. These keys had also been missing since July 18. After inspecting her automobile, Johnson noticed that the left window was broken, the ceiling was "hanging down", the exhaust pipe was bent and had a hole in it, and the dashboard and steering column were undamaged.

Appellant presented no testimony, and the court, after hearing the testimony of these witnesses found him guilty of receiving stolen property and unauthorized use of an automobile. Post-verdict motions were timely filed and were heard and denied on December 10, 1984, at which time appellant was sentenced to two ...


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