Commonwealth v. Bailey

378 A.2d 998, 250 Pa. Super. 402, 1977 Pa. Super. LEXIS 2509
CourtSuperior Court of Pennsylvania
DecidedOctober 6, 1977
Docket482
StatusPublished
Cited by41 cases

This text of 378 A.2d 998 (Commonwealth v. Bailey) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bailey, 378 A.2d 998, 250 Pa. Super. 402, 1977 Pa. Super. LEXIS 2509 (Pa. Ct. App. 1977).

Opinions

SPAETH, Judge:

Appellant was convicted, following a trial by jury, of theft by unlawful disposition 1 and of theft by receiving stolen goods.2 On this appeal he contends that the evidence was insufficient to sustain the conviction. We agree that the evidence was insufficient to sustain the conviction of theft by unlawful disposition, and we therefore vacate the judgment of sentence on that charge. However, we affirm the conviction on the charge of theft by receiving, and remand for resentencing.

In 1974, the Quaker State Telephone Company stored new and scrap telephone cable at two locations in Lycoming County, one at Trout Run, and the other at Loyalsock. The storage area at Trout Run was enclosed by a fence, while that at Loyalsock was open. On October 3, 1974, during an inventory check at Trout Run, an employee of Quaker State discovered that an entire reel of plastic-sheathed copper telephone wire was missing. The missing reel contained 4018 feet of wire, weighed 930 pounds and had a replacement value of $847.79. The employee was'unable to establish the date when the reel disappeared. At the time of a [406]*406prior inventory check at Trout Run on September 3,1974, no wire had been missing. However, a week prior to the October 3 inventory check a hole cut in the fence at Trout Run and footsteps going in and out of the yard had been discovered.

From October 14 to 18, 1974, Quaker State employees removed some lead-coated wire from active use and stored it in piles as scrap wire at the Loyalsock location. Shortly thereafter, an employee discovered that the piles were diminishing daily.

The employee testified that the stolen copper and lead wire were of no practical use to an individual and that the only use for the wire was for telephone service. The copper wire consisted of 50 individual 22 gauge wires within a plastic sheath; it was a special type of wire used exclusively by telephone companies; it could not be used in homes or cars; and its only commercial value was for sale to a scrap dealer.

As a result of information received by the Pennsylvania State Police on November 14, 1974, a trooper went to the home of Sylvester Bailey, in Williamsport, Lycoming County. On an enclosed porch at Bailey’s home the officer discovered cable of the type taken from the telephone company. The officer testified that the porch — an area of sixty-four square feet — was almost full of wire.

A telephone company employee identified the wire as that used by Quaker State Telephone Company. The telephone company returned the wire to its storage areas and then sold it as scrap. The employee testified that in his opinion the amount of lead-coated wire recovered from Bailey’s home was approximately the same amount as that stolen from Loyalsock. He was unable to make the same judgment about the new copper wire. The scrap value of the lead-coated wire was $245.70.

Sylvester Bailey, who was arrested for receiving stolen goods, testified for the Commonwealth. He stated that his son, appellant, and another man brought the wire into his [407]*407house and stacked it on the porch.3 Bailey did not remember the date of this occurrence.

On December 12, 1974, appellant was arrested and charged with two counts of theft by unlawful disposition, two counts of theft by receiving stolen property, and conspiracy.4 After the trial court sustained a demurrer to the conspiracy count, the jury found appellant guilty of the remaining counts. On the first charge of theft by unlawful disposition, appellant was sentenced to a term of imprisonment of one to five years; on the second charge of theft by unlawful disposition, appellant was sentenced to serve a five year term of probation to commence at the expiration of the first sentence. Appellant did not receive a sentence on either count of theft by receiving. This appeal followed.

Appellant contends that the evidence was insufficient to convict him of theft by unlawful disposition. We must view the evidence in the light most favorable to the Commonwealth, as the verdict winner. Commonwealth v. Porter, 229 Pa.Super. 314, 323 A.2d 128 (1974). Nonetheless, it is axiomatic that in a criminal case, the guilt of the accused must be proved beyond a reasonable doubt, Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971). Guilt must be proved and not conjectured. Commonwealth v. Wilson, 225 Pa.Super. 513, 312 A.2d 430 (1973). Evidence of possession of stolen property may be relevant in deciding whether the possessor is the one who stole it. However, evidence of possession alone is not sufficient to prove theft beyond a reasonable doubt. Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974). All of the evidence of surrounding circumstances must be considered, and although a conviction may be based on circumstantial evidence alone, it must meet the standard of proof beyond a reasonable doubt. Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975).

[408]*408In the instant case, the Commonwealth failed to show any link whatsoever between appellant and the removal of the cable from Trout Run or Loyalsock. No one saw appellant at or near the scene, nor was he apprehended with the goods within a few hours of the theft. Cf. Commonwealth v. Simmons, supra. In short, anyone could have removed the property from the two areas and later transferred it to appellant. The Commonwealth failed to introduce any evidence, direct or circumstantial, that appellant was the thief. Accordingly, we vacate the judgment of sentence on both counts of theft by unlawful disposition.

Appellant also challenges the sufficiency of the evidence on the conviction of theft by receiving stolen property.

The crime of receiving stolen goods requires proof beyond a reasonable doubt that the receiver knew the goods were stolen. Possession of stolen property in and of itself is not sufficient evidence from which a factfinder may conclude guilt beyond a reasonable doubt. Possession alone of the stolen property without a weighing of the other circumstances requires guessing or speculation as to the defendant’s knowledge that the property was stolen .
The element of appellant’s guilty knowledge may be established by direct evidence of knowledge or by circumstantial evidence from which it can be inferred that appellant had reasonable cause to know that the property was stolen. If from the circumstantial evidence, it can be inferred that the appellant had reasonable cause to know, a final inference can reasonably be made that he in fact knew that the property was stolen.
Commonwealth v. Henderson, 451 Pa. 452, 455, 304 A.2d 154, 156 (1973).

Thus, guilty knowledge can be found when possession of recently stolen goods combines with other circumstances sufficient to warrant an inference of knowledge that the goods were stolen.

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Bluebook (online)
378 A.2d 998, 250 Pa. Super. 402, 1977 Pa. Super. LEXIS 2509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bailey-pasuperct-1977.