Commonwealth v. Doman

416 A.2d 507, 490 Pa. 355, 1980 Pa. LEXIS 770

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1980
• Docket: No. 1406
• Status: Published

Opinions

OPINION OF THE COURT

O’BRIEN, Justice.

Appellant, Raymond Doman, was convicted by a jury of larceny and operating a motor vehicle without consent of the owner. Post-verdict motions were filed, but then were withdrawn prior to sentencing, when appellant received concurrent prison terms of eighteen months to three years. Appellant then appealed to the Superior Court, which vacated the judgments of sentence and remanded for the filing of new post-verdict motions. Commonwealth v. Doman, 237 Pa.Super. 415, 352 A.2d 157 (1975). The motions were filed and denied, and appellant received the same sentences which previously had been imposed. The Superior Court affirmed, per curiam. Commonwealth v. Doman, 251 Pa.Super. 594, 381 A.2d 893 (1977). We granted appellant’s petition for allowance of appeal.

Appellant argues that the evidence presented at trial was insufficient to sustain either of his convictions. The facts adduced at trial are as follows.

On October 7, 1970, George Wescott’s 1965 Cadillac was stolen from his place of employment in Delaware County. Three weeks later, on October 27, two Philadelphia policemen on patrol saw appellant drive a Cadillac with a flat tire through a red light. In response to a signal from the officers, appellant, who was alone in the car, pulled into a gas station near the intersection of Broad Street and Lycoming Avenue. Appellant was unable to produce either a driver’s license or an owner’s registration card for the vehicle. The police noticed that the window on the driver’s side was broken and that the car’s serial numbers had been obliterated. Further investigation revealed that the Cadillac was the one which had been reported stolen by Wescott.

Appellant testified that he worked at an Esso station at the corner of Broad and Lycoming. He stated that, at the time of his arrest, he was acting pursuant to orders from his boss, Samuel Rivers, and was simply moving the car from the service station lot to a lot across the street. Wescott testified, however, that he did not know appellant and had never given appellant or anyone else permission to drive the car.

Appellant was charged with larceny, receiving stolen property and operating a motor vehicle without consent of the owner. At the close of the Commonwealth’s case, the trial court sustained a demurrer to the charge of receiving stolen property. The remaining two charges were given to the jury, which convicted appellant of both charges.

No. 406 March Term, 1971

Appellant first claims that the Commonwealth failed to prove that he was operating the automobile without Wescott’s permission. We do not agree.

The Legislature had provided:

“It shall be unlawful for any person . . . [t]o make use of or operate any motor vehicle or tractor without the knowledge or consent of the owner or custodian thereof.” Act of April 29, 1959, P.L. 58, § 624(5), formerly 75 P.S. § 624(5).

Instantly, the Commonwealth was able to show that appellant was operating Wescott’s automobile at the time he was arrested. Further, Wescott testified that he had never given appellant or anyone else permission to drive the car. Despite appellant’s testimony to the contrary, the jury, in its province as fact finder and hence, the sole arbiter of credibility, Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978), was presented sufficient evidence upon which to convict appellant of operating a motor vehicle without consent of the owner.

No. 405 March Term, 1971

Appellant next argues that the evidence was insufficient to sustain his conviction for larceny. As the incident in question predates the effective date of the Crimes Code, the 1939 Penal Code is controlling. As the Superior Court stated:

“Larceny in Pennsylvania is a common-law larceny and consists in the taking and carrying away of the personal property of another with the mind of a thief, that is, with the specific intent to deprive the owner permanently of his property.” Commonwealth v. Lyons, 219 Pa.Super. 18, 22, 280 A.2d 458, 461 (1971). (Emphasis added.)

Our review of the record reveals not a single iota of evidence which would support a finding that appellant took and carried away Wescott’s automobile.

The Commonwealth and the trial court cite two cases which they believe allow a conviction for larceny on the instant record. In Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976), a plurality of this court held that unexplained possession of recently stolen goods, along with other evidence in the case, was sufficient to sustain a conviction for receiving stolen property. Suffice it to say that the crime of receiving stolen property contains no element of taking and carrying away and for that reason Williams does not support the argument set forth by the Commonwealth.

In Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972), we affirmed a conviction for larceny, stating:

“In our view, the inference under consideration, when competently invoked as it is in the instant case, clearly meets the ‘more-likely-than-not’ test. In reaching this conclusion, we look to the following criteria to determine if the inference is valid: the lapse of time between the crime and the discovery of the property; the type and kind of property; the amount and volume of the property; and the ease in which it may be assimilated into trade channels. In the instant case, Shaffer was found in possession of the jewelry less than twenty-four hours after the two burglaries, he had in his possession a large quantity of jewelry (approximately twenty-five pieces), and it was clearly marked with the names and initials of other individuals. This quantity of jewelry, with this type of markings is not sold on street corners, or left lying around in automobiles. Moreover, when Shaffer was confronted by the police he gave a false name, and one of his co-felons attempted to hide the jewelry from the investigating officers by throwing it out of the window of the vehicle in a sock.” (Footnote omitted.) Id., 447 Pa. at 109, 288 A.2d at 737.

We believe, however, that Shaffer is inapposite for at least one critical reason: i. e., the difference in time involved in the two cases. In Shaffer, the jewelry which the defendant therein was convicted of stealing had been stolen less than twenty-four hours before the time of arrest. Instantly, the automobile had been stolen approximately three weeks prior to the arrest of appellant. The instant facts do not prove it was “more-likely-than-not” that appellant had stolen the automobile. While we believe the evidence could have sustained a conviction for receiving stolen property, we find insufficient evidence to sustain appellant’s theft conviction.

Judgment of sentence at No. 405 March Term, 1971 is reversed and appellant is ordered to be discharged.

Judgment of sentence at No. 406 March Term, 1971 is affirmed.

KAUFFMAN, J., filed a concurring and dissenting opinion in which EAGEN, C. J., and LARSEN, J., joined.