HomeMy WebLinkAboutCP-21-CR-1356-2004
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CP-21-CR-1356-2004
JOHN OLIVER KARRY
IN RE: OPINION PURSUANT TO RULE 1925
On March 8, 2005, following a jury trial, the defendant was found guilty on a count of
theft by unlawful taking, receiving stolen property, and unauthorized use of an automobile. He
was thereafter sentenced and has since appealed. He raises only one matter on appeal: namely,
that there was insufficient evidence to sustain the convictions.
The facts of the case are uncomplicated. Mr. Karry was a business friend of one John
Thompson. He borrowed a 1983 Honda Civic from Patty Thompson, John's wife. The purpose
of his borrowing the car was so that he could drive to West Chester, Pennsylvania, on business.
Mr. Karry never asked the Thompsons if he could keep the car for more than a weekend nor did
he request to leave the state with the vehicle. Notwithstanding, he proceeded to New Jersey and
then to Virginia. He never returned the vehicle to the Thompsons and, in fact, was not heard
from. The vehicle was found two years later in Virginia Beach.
It is well established that, in determining the legal sufficiency of evidence, the evidence
must be viewed in a light most favorable to the Commonwealth and all reasonable inferences
must be drawn in favor of the prosecution. This test is equally applicable to cases where the
evidence is circumstantial rather than direct. Com. v. Cassidy, 668 A.2d 1143 (Pa. Super. 1995).
A person is guilty of unauthorized use of automobiles if he "operates the automobile. . . of
another without the consent of the owner." 18 Pa.C.S.A. 3928. In this case, it is clear that the
defendant's extended possession of the automobile and its operation by him was without the
consent ofMr. Thompson.
A person is guilty of receiving stolen property if he intentionally "retains... moveable
property of another knowing that it has been stolen." 18 P.S. 3925. To prove the defendant's
guilt of theft by receiving, it is incumbent upon the Commonwealth to show that an item was
stolen, that the defendant was in possession of it, and that he knew or had reason to know it was
stolen. Com. v. Deemer, 462 A.2d 776 (1983). It is clear that the element of knowledge is
established if it is the defendant himself who stole the item. Thus, the final question is whether
the evidence was sufficient to establish that the defendant was guilty of a theft.
Theft by unlawful taking is committed where a person exercises "unlawful control over
moveable property of another with intent to deprive him thereof." 18 P.S. 3921. In this case, the
evidence permits an inference that the defendant retained the Thompsons' vehicle years beyond
the allowed time, that during his retention of the vehicle he had no contact with the Thompsons
nor did he make any effort to return the vehicle. Weare satisfied that a jury could readily infer
from these circumstances that the defendant had the intent to "deprive" the Thompsons of their
motor vehicle.
November 30, 2005
Kevin A. Hess, J.
Jaime M. Keating, Esquire
Chief Deputy District Attorney
Timothy Clawges, Esquire
Assistant Public Defender