Commonwealth v. Dravecz
Commonwealth v. Dravecz
Opinion of the Court
Opinion by
Joseph J. Dravecz appeals from the judgment of sentence imposed after his motions in arrest, of judgment and for a new trial were denied. He was convicted of burglary, larceny and receiving stolen goods and was. fined $100, sentenced to the Lehigh County Prison for one (1) to two (2) years and" ordered, to make restitution in the sum of $3,000..
Following are the relevant facts which we have taken from the opinion of Judge Scheirer for the court below:
“Sometime between the late afternoon of July 3 and the early morning of July 5, 1963 a trailer used for the storage of construction equipment and located on a job in Hanover Township, Lehigh County (within a short distance of the Lehigh-Northampton County line) was forcibly entered and tools such as air hammers, drills, pumps, a cutting torch and an air hose were found to be missing on July 5. Serial numbers of missing wacker type hammers were provided to the police. Prior to the dates in question and subsequent thereto, the defendant was employed as a laborer by the construction company owning the trailer.
“On December 28, 1963, two members 'of the Pennsylvania State Police,, armed with search warrants, visited a farm owned by defendant’s parents and located in Northampton County. Upon a search of the barn, the officers found four jackhammers,' two pavement breakers, two wacker tampers, a pump, acetylene hose and torches. Two of the serial numbers noted at the time of the burglary were on wacker tampers found in the barn. Other items were of the type as were discovered missing in the trailer. The property stolen had an estimated valué of $6,000 and the property retrieved had an estimated value of $3,000. There was evidence that the farmhouse, though being remodelled, was occupied and personal items therein such, as clothing, let
“Defendant, apparently learning that he was wanted, voluntarily appeared at the State Police Barracks on December 30, 1963 and denied the burglary. He was confronted with a statement by one Stockley to the effect that in July, 1963 the defendant and another appeared at Stockley’s residence in a green pickup truck carrying construction equipment including jackhammers and the defendant asked Stockley to sell the equipment. Upon this confrontation, defendant remained mute.
“On December 17, 1963, defendant, Carl Stass and Eugene Stockley appeared at a concrete construction company office in Northampton County in a green pickup truck upon which was loaded two compactors (tampering machines) and a pump. The equipment was offered for sale whereupon a company official gave a check in the sum of $450 to Carl Stass upon his assertion that the items belonged to his brother. The items then were unloaded and placed in a garage. The nest morning the same three individuals returned and sought to rescind the sale because the price was inadequate. The company released the articles and received the check given the previous dáy. The equipment was reloaded in the green truck and transported to the farm where defendant allegedly resided. Stass said that when the items were picked up at the construction company’s office he had a feeling they were stolen.”
I.
who offered no testimony at trial, contends that the evidence was legally insufficient to support a finding that he was in possession of recently stolen property,
In his argument for arrest of judgment, defendant, without which finding the verdict cannot be sustained.
Defendant urges that the farm-was owned by Ms parents, that he did not live'there, and thus he could not be said to be in possession of the stolen ■ property. “The sense of the term ‘possession’'in this connection is not necessarily limited to custody 'about the person. It may be of things elsewhere deposited but under -the control of a person. . It may be in a storeroom or barn when-the accused has the -key.. In short, it-may be in any place where, it is manifest it in-ust hávé":b'éen'-püt by the act of the party or with his undoubted'- Concurrence.” 32 Am. Jur. Larceny §141., ■ There-w-ás' -evidence at trial that defendant’s parents' Actually ■••lived in the City of Bethlehem and that food, men’s'clothing, dogs and cats were found in the.farmhoüse, .-which -was being remodeled. The farm address, R,- D; 5, Bethlehem, Pennsylvania, was used by defendant- as his- address on his driver’s license. Mail and cancelled cheeks found there on December 28, 1963 contained the name of defendant with the address, R. D. 5, Bethlehem, Pennsylvania. Defendant’s job foreman, who had -been a friend of defendant for years, testified' that he used to see the defendant “down on his farm. T Used to" go down, there two or three days a-week. - I 'Used to help him out.”' - Another witness' testified' that”hé, along with the. defendant, ' hauled ' construction^ nqUipméht “back, to the farm, Mr. Dravecz’s farm.”. This occurred on December 17, 1963, eleven days -before the property was found, when the witness and defendant-rescinded a sale of the equipment to a construction company: In light of all this evidence we cannot say as a matter of
Defendant’s argument as to whether five months and twenty-four days is, as a matter of law, too long a time to qualify the property as recently stolen is misdirected. The issue before us in this case is not where we, as an appellate court, should fix a precise point in time and label that period “recent”. “The law does not declare just what this period is; much depends upon the character of the property and the circumstances of the case.” Commonwealth v. Berney, 28 Pa. Superior Ct. 61, 68 (1905). The issue is whether or not a jury should be permitted to consider, along with all the other evidence, that large items of construction equipment were found at the farm five months and twenty-four days after such equipment was stolen. Commonwealth v. Dattala, 77 Pa. Superior Ct. 320 (1921), provides the answer. In that case, involving the theft of an automobile found in Dattala’s possession five months and thirteen days after it was stolen, we said at p. 322:
“Without going into a discussion of the subject as to the presumption of law arising from the possession of stolen property ‘a most troublesome and fruitless controversy’ says Wigmore, section 2513, and granting arguendo that the mere unexplained possession if not recent, is not sufficient to convict, we do not think under the facts presented that the court could have instructed the jury to acquit the defendant ... We think the possession of the stolen machine although not recent, coupled with . . . circumstances which might be regarded as suspicious require the submission of the case to the jury. The possession of the stolen machine was a probative fact to be considered with the other facts in the ease.”
Likewise in this case, other circumstances required the submission of the case to the jury. Among them are: (1) Defendant’s tacit admission that within
We agree with the lower court that the case had to be submitted to the jury.
II.
Defendant’s argument for a new trial centers around a statement made by Eugene Stockley. Stockley was
“Will you tell us-anything you know about the contractor’s equipment?”
-When -asked to read his answer to this question, Stockley read
.“A. . Yes, sometime in July,. 1963 .Joe Dravecz and another man by the name of -Ñemeo- — I-think he comes from Phillipsburg, New Jersey — came to my house in a green, pickup truck. They called me outside and showed, me the contractor’s equipment and asked if I could, sell it for.- them.- That same equipment I later saw -down at Dravecz’s barn.”
•■■.¡Asked., to read, the next question, Stockley continued:
.“Q.- -Is this the same equipment we now have at the barracks?
A. Yes.”
Earlier in the trial the state policeman who had taken Stockley’s statement testified that on December 30, 1963 he got Stockley and the defendant together and read Stoekley’s statement to the defendant. In testifying, he did' not actually read the statement but quoted from it, using the third person. He then testified that, after he read the statement to the defendant, the defendant “didn’t do anything. He just sat there. He was mute.-”.
The defendant argues that it was improper to allow his silence in the face of the statement read to him on
Defendant contends that the statement did not accuse him of a crime, was not so incriminating as to naturally call for a denial, and therefore was not admissible, citing Commonwealth v. Sindel, 205 Pa. Superior Ct. 355, 208 A. 2d 894 (1965). Unlike in Commonwealth v. Sindel, supra, where the statement concerned conversations involving other persons about which Sindel had no knowledge and thus gave rise to no duty on Sindel’s part to speak, portions of this statement read to the defendant linked defendant with the stolen equipment soon after the date of the larceny. Defendant’s silence in the face of this incriminating statement brought this case within the Valione rule.
Thus admissible as an implied admission of the truth of any charges contained in the statement, Stockley’s statement and Dravecz’s failure to deny it were for the jury’s consideration. We find no reversible error in either the trial judge’s failure to caution the jury when the statement was read that the statement was to be considered only as impeaching evidence, no request to so caution having been made at trial, or in the charge on this point. The statement, never ad
“The Stoekley statement is part of the evidence in this case. You do have a problem of credibility as to Stoekley. You will remember the fact that he admitted making a statement and then his memory wasn’t so good on the stand, but under the circumstances it is for you to determine whether Stoekley was telling the truth from the witness stand in view of a prior inconsistent statement. In other words, he admitted making a statement previously to the State Police which involved these two defendants: On the stand, he wasn’t so sure, but in view of that situation between the prior inconsistent statement and what he said on the stand, you have a problem of determining the credibility of that witness.”
Judgment of sentence affirmed, and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he shall have complied with his sentence or any part thereof which had not been performed at the time the appeal in this case was made a supersedeas.
The charge on this issue of recentness was eminently fair, as the following illustrates: “Therefore, you have the period of July 3rd, 4th and 5th to the end of December, so yours is the task of determining whether the possession was so recent subsequent to the taking as to give rise to the inference of guilt just discussed. I might tell you that this element of recent possession is something that is important because the longer the time away from the theft of the property, the greater the presumption that the property was acquired in a proper manner. In other words, the more time that elapses the less possibility there is that you can make an inference that the property was stolen.”
The Commonwealth’s plea of surprise was made after Stockley would not identify- Dravecz at trial as one of the persons who hhd come to his house with construction equipment to he sold. The lower'court’s ruling on this is not objected to in this appeal.
The writer of this opinion has expressed his view of the tacit admission rule in a dissent in Commonwealth ex rel. Staino v. Cavell, 207 Pa. Superior Ct. 274, 217 A. 2d 824 (1966), but recognizes that Commonwealth v. Vallone, supra, is the law' in this jurisdiction until changed by our Supreme Court. ‘
Concurring in Part
Concurring and Dissenting Opinion by
I concur in -the finding-of'the majority that there was sufficient evidence to submit this-case to a jury. However, I would grant a new trial, because I believe that the tacit admission should not have been admitted into evidence for the reasons set forth in my dissenting opinion in Commonwealth ex rel. Staino v. Cavell, 207 Pa. Superior Ct. 274, 217 A. 2d 824 (1966).
Reference
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