Commonwealth v. Stover

VAN der VOORT, Judge: On August 7, 1978, a Cadillac Coupe de Ville, owned by one Terlecki, was stolen from the Monroeville Mall in Allegheny County. On September 13, 1978, five weeks and two days later, the vehicle was observed by a police officer in front of appellant’s place of business, an auto repair shop, on River Street, Monesson, Westmoreland County. Because the vehicle created an obstruction to traffic the officer ordered appellant to move it. An argument ensued and appellant was arrested for disorderly conduct and ordered by the officer to come to the Police Station. Appellant then said: [511] “You want my vehicle moved, is that right? How about if I drive it to the station? This way I’ll have the vehicle moved and then you’ll have me in custody at the same time.” (N.T. p. 24) The officer agreed and appellant drove the car to the police station. On September 26, 1978, a second officer observed the same Cadillac parked on 6th Street in Monesson, which was neither in the vicinity. of appellant’s home or his place of business. The vehicle was parked illegally, so the officer had the car impounded. Thereafter the car was determined to be stolen. Appellant was arrested on charges of Unauthorized Use of a Motor Vehicle,1 and Receiving Stolen Property.2 The case was heard by the lower court sitting with a jury. Testimony was presented that the vehicle bore, both on September 13 and 26, 1978, a license plate reading 733- -38Z. However, no evidence was presented as to whom such plate was registered. The owner of the vehicle stated that at the time the car was stolen the license plate on the car was F- 66 -132. He further testified that he had not given appellant permission to drive the car. Appellant did not testify. At the end of the testimony, the judge dismissed the charge of unauthorized use. The charge of receiving stolen property was submitted to the jury which returned a verdict of guilty. Post trial motions were denied and appellant was sentenced. This appeal followed. Appellant’s sole contention raised before this court is that the Commonwealth failed to present sufficient evidence to prove his guilt beyond a reasonable doubt. In particular, appellant argues that the prosecution did not show that he received and retained the automobile in question; or that he knew the automobile to be stolen. The trial court’s opinion recognizes that there is involved in this case a “troublesome issue wrestled with by our [512] Supreme Court” in Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973) and Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976). Specifically, that issue is whether there was presented in this case sufficient evidence to submit to the jury the question of whether appellant, in possession of the stolen car on September 13, 1978, and referring to it as “my vehicle”, knew or should have known at that time that the car was stolen.3 The court then draws a comparison with Williams, supra in that appellant, like Williams, offered no evidence to explain how he came into possession of the car, and concluded that Williams supported an “inference of guilty knowledge on the defendant”. Paraphrasing Williams, 468 Pa. 357, at 365, 362 A.2d 244, 247 “a permissible inference of guilty knowledge may be drawn from the unexplained possession of recently stolen goods ... as well as from other circumstances, such as the accused conduct at the time of arrest.” The possession here was not very “recent”, 37 days after the car was stolen, compared to 12 days in Williams. Additionally, in Williams the accused made a clear effort to avoid apprehension. In the present case there was no comparable testimony; in fact, while appellant may have been disorderly on September 13, 1978, he nonetheless volunteered to drive the car to the police station. Compare, Commonwealth v. Williams, 284 Pa.Super. 244, 425 A.2d 795 (1981) (defendant asked police for directions). Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977), cited by the Commonwealth presents an unusual set of circumstances, not analagous to the facts of the present case.4 In Commonwealth v. Murray, 246 Pa.Super. 422, 371 [513] A.2d 910 (1977), the accused’s possession of the stolen car was about 3V2 hours after the theft was discovered; the car was being driven without an ignition key, with the ignition wires “pulled down”; and the defendant attempted to flee from police officers. The conviction was affirmed. In Commonwealth v. Phillips, 258 Pa.Super. 109, 392 A.2d 708 (1978), the vehicle was a motorbike stolen a week before it was found in the accused’s possession; and the bike had been repainted and the serial number marred. The evidence was found sufficient. The present case resembles Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973), reversing our decision at 219 Pa.Super. 454, 281 A.2d 777, on the ground that the evidence was insufficient as a matter of law to sustain a conviction. The accused in Henderson, was found in possession of a car stolen 2lk to 3 weeks after its theft, and the car bore a stolen license plate. Henderson was arrested when observed driving the stolen car with the stolen license plate. He pulled over at an officer’s request. The appellant testified that he had borrowed the car a short time earlier. Our Supreme Court held that the evidence would not support the inference that the defendant knowingly possessed stolen property. In Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975), we reversed a sentence for receiving stolen goods, although we sustained a conviction for unauthorized use of a vehicle, where the car was stolen 17 days earlier and the accused was driving it without an owner’s card. He claimed he borrowed the car from a friend. Similarly here, we find the evidence insufficient to support a finding that appellant knew or should have known the car was stolen. Judgment of sentence is reversed and appellant is ordered discharged. [514] BROSKY, J., files a concurring opinion. HESTER, J., files a dissenting statement. Footnotes [1] 18 Pa.S.C. § 3928. [2] 18 Pa.S.C. § 3925. [3] There appears to be no evidence in the case to tie appellant into the possession of the car on September 26, 1978, when police found it parked improperly and impounded it. [4] In Bailey, the defendant was charged with RSP, involving wire stolen from a telephone company. Some of the wire had been stolen a month prior to the defendant’s possession, some two months earlier. The court found the unexplained possession of wire, which the manufacturer only sold to the phone company, which then sold it to a scrap dealer at the end of its useful life, sufficient evidence for a [513] conviction. The wire had no other use. Similarly, in Commonwealth v. Walters, 250 Pa.Super. 446, 378 A.2d 1232 (1977), the court found possession six days after the theft of items too bulky to have passed through the channels of commerce so quickly, sufficient to support a conviction. The court also noted that the defendant had hurriedly left home upon being informed that the police were looking for him.