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1 of 2 DOCUMENTS
Commonwealth v. Maybee, Petitioner
March Term, 1968, No. 144
Supreme Court of Pennsylvania
429 Pa. 222; 239 A.2d 332; 1968 Pa. LEXIS 793

March 15, 1968, Decided

PRIOR HISTORY: [***1] Petition for leave to appeal from order of Superior Court, April T., 1967, No. 226,
affirming judgments of sentence of Court of Oyer and Terminer of Allegheny County, Nos. 3862 and 3863 of 1965, in
case of Commonwealth of Pennsylvania v. Frank Maybee, alias LeRoy Coleman, and James McCray.

DISPOSITION: Petitions for allocatur granted, order of Superior Court reversed, judgments of sentence of Court of
Oyer and Terminer of Allegheny County reversed, and new trials granted.
CASE SUMMARY:

PROCEDURAL POSTURE: Defendant sought review of the order of Superior Court (Pennsylvania), which affirmed
a judgment convicting him for burglary and larceny and sentencing him to two concurrent prison terms of two to four
years.
OVERVIEW: Defendant was convicted of burglary and larceny after two men reported that their automobiles had been
burglarized and he was found driving an automobile containing clothing which the men stated were in their
automobiles. Defendant was sentenced to two concurrent sentences of two to four years. The appellate court affirmed,
and defendant's petition for allocatur was granted. On review, the court reversed the lower court's order and granted
defendant a new trial, because the corpus delicti was not proven where there was no demonstration through admissible
evidence that the clothing was stolen. The prosecution rested solely on the events recited by the police chief; however,
his testimony concerning the ownership of the allegedly stolen goods consisted of inadmissible hearsay and was
objected to as such by defendants' counsel. The court concluded that the bulk of the police chief's recitation was
inadmissible. Because there was no evidence that the goods were stolen, defendant could not be convicted of either
larceny or receiving stolen goods.
OUTCOME: The order affirming a judgment that convicted and sentenced defendant for burglary and larceny was
reversed, and defendant was granted a new trial, because the corpus delicti was not proven where there was no
demonstration through admissible evidence that the property was stolen.
CORE TERMS: stolen, corpus delicti, clothing, ownership, hearsay, circumstantial evidence, stolen goods,
burglarized, consisted, larceny, proven, sentence, admissible evidence, police officers, new trial, inadmissible, allocatur,
broadcast, arrested, parked, motel, mile
LexisNexis(R) Headnotes

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429 Pa. 222, *; 239 A.2d 332, **;
1968 Pa. LEXIS 793, ***1
Evidence > Hearsay > Exemptions > Confessions > Corpus Delicti Doctrine
Evidence > Procedural Considerations > Circumstantial & Direct Evidence
Evidence > Relevance > Circumstantial & Direct Evidence
[HN1] A necessary predicate to any conviction is proof of the corpus delicti, i.e., the occurrence of an injury or loss and
someone's criminality as the source of this injury or loss. Although the corpus delicti may be proven by circumstantial
evidence, the circumstantial evidence employed must be admissible evidence.
Criminal Law & Procedure > Criminal Offenses > Property Crimes > Larceny & Theft > General Overview
Criminal Law & Procedure > Criminal Offenses > Property Crimes > Receiving Stolen Property > General Overview
[HN2] If there is no evidence that the goods were stolen there can be no conviction for either larceny or receiving stolen
goods.
Criminal Law & Procedure > Postconviction Proceedings > Arrest of Judgment
Criminal Law & Procedure > Appeals > Standards of Review > General Overview
Evidence > Hearsay > Exemptions > General Overview
[HN3] An appellate court may not grant a motion in arrest of judgment on a diminished record.
COUNSEL: Daniel T. Zamos and Anthony C. Troiano, Assistant Defenders, and George H. Ross, Defender, for
petitioners.
Edwin J. Martin and Charles B. Watkins, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for
Commonwealth, respondent.
JUDGES: Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.
OPINION BY: ROBERTS
OPINION
[*223] [**333] It has long been fundamental to the criminal jurisprudence of this Commonwealth that [HN1] a
necessary predicate to any conviction is proof of the corpus delicti, i.e., the occurrence of an injury or loss and
someone's criminality as the source of this injury or loss. See Commonwealth v. Burns [***2] , 409 Pa. 619, 627, 187
A. 2d 552, 556-57 (1963); Commonwealth v. Turza, 340 Pa. 128, 133, 16 A. 2d 401, 404 (1940). Although the corpus
delicti may be proven by circumstantial evidence, see Commonwealth v. Homeyer, 373 Pa. 150, 94 A. 2d 743 (1953);
Commonwealth v. Gardner, 282 Pa. 458, 128 Atl. 87 (1925), the circumstantial evidence employed must be admissible
evidence. The present controversy concerns the application of these principles.
Frank Maybee and James McCray were convicted in November of 1965 by a judge sitting without a jury and received
two concurrent sentences of 2 to 4 years for burglary and larceny. These convictions were affirmed [*224] without
opinion by the Superior Court and a petition for allocatur was then filed. This petition is granted, the order of the
Superior Court is reversed and the judgment of sentence of the Court of [**334] Oyer and Terminer of Allegheny
County is reversed.
The totality of the Commonwealth's case consisted of testimony of four police officers. 1 Appellants contend, and we
agree, that the admissible testimony was insufficient to prove the corpus delicti for the testimony concerning the
ownership of the allegedly [***3] stolen goods was hearsay. Thomas Prendergast, Chief of Police of the Borough of
Sewickley, testified that on the morning of May 21, 1965 two men reported that their automobiles, parked in the lot of
the Sewickley Inn, had been burglarized. According to Prendergast, these two men gave the Sewickley Borough police
a list of the items taken which was broadcast to the various police departments in the surrounding area. Some time later
a call was received from the Moon Township police that they had two men in custody who had been driving an
automobile containing clothing which matched the list earlier broadcast. Prendergast further testified that the owners of

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429 Pa. 222, *224; 239 A.2d 332, **334;
1968 Pa. LEXIS 793, ***3
the burglarized vehicles subsequently identified the clothing as theirs.

1 Although the Commonwealth's case did include statements allegedly made by appellants, these statements can play no role in our
determination of whether the corpus delicti was demonstrated. Commonwealth v. Burns, supra; Commonwealth v. Turza, supra.

The second of the four [***4] officers, Police Lieutenant Frank Tyler of Moon Township, testified that he was
"staked-out" at the Howard Johnson Motor Inn when a white 1959 Chrysler pulled into the motel parking lot and, upon
noticing a police car parked in the lot, immediately returned to the highway. A 100 mile per hour chase ensued;
approximately four miles from the motel the Chrysler's engine caught fire and the vehicle's [*225] two occupants,
identified by Tyler as appellants, fled. Although Tyler was unable to apprehend appellants, he testified that he observed
a considerable amount of clothing on the back seat of the Chrysler. Patrolman Frank Schramm of Robinson Township
testified that he subsequently arrested Maybee and Officer Joseph Pantuso of Collier Township said that he arrested
McCray. 2

2 Appellant's counsel demurred to the Commonwealth's evidence but this demurrer was not sustained.

Two Superior Court cases have considered a similar problem and well delineate the controlling considerations. In
Commonwealth v. [***5] Gold, 155 Pa. Superior Ct. 364, 38 A. 2d 486 (1944), defendant was charged with larceny.
One Gans, a police officer, testified that the owner of the allegedly stolen property (Goldsmith) had identified the
property as stolen. However, at trial Goldsmith insisted that the goods could have been stolen but that it was equally
possible that defendant had purchased the items from either his (Goldsmith's) or another store. The Superior Court,
holding that the Commonwealth had failed to prove the corpus delicti, stated (supra at 369-70, 38 A. 2d at 488-89):
"This is not the case of proof solely upon circumstantial evidence which we have frequently upheld, but a clear case of
failure of the Commonwealth to prove the ownership of the articles alleged to have been stolen or received. . . . [T]he
proof did not establish the allegations of the indictment that the goods were the property of the Supply Company, or
who was the real owner." Commonwealth v. Cohan, 177 Pa. Superior Ct. 532, 111 A. 2d 182 (1955) was a prosecution
for receiving stolen goods. Although the owner of the stolen items did not testify, the thief did and stated that he sold
these items to defendant. Cohan contains [***6] the following explanation of Gold (supra at 539, [*226] 111 A. 2d at
185-86): "That the property was stolen is an element of the crime which must be proven by the Commonwealth. But the
owner is not the only person who can establish it.
[**335] . . .
"The point of the Gold case is not that the owner must identify the goods as having been stolen, but that [HN2] if there
is no evidence that the goods were stolen there can be no conviction for either larceny or receiving stolen goods."
(Emphasis in original.)
We believe it clear that the present case falls on the Gold side of the line. The testimony of officers Tyler, Schramm
and Pantuso contains not one line in any way indicating the ownership of the allegedly stolen items and the
Commonwealth must therefore rest solely on the events recited by Chief Prendergast. The bulk of Prendergast's
testimony, however, consisted of inadmissible hearsay, and was objected to as such by appellants' counsel at trial.
Thus, Prendergast's recitation that he was told by two men that their vehicles were burglarized, that he received a radio
message from Moon Township that an automobile had been captured containing clothing and [***7] that these two car
owners later told him that the recovered clothing was theirs was inadmissible. 3 The Commonwealth's evidence on the
issue of ownership is thus identical with that contained in Gold and consisted of hearsay that a third party told the
testifying officer that the items were theirs. Absent any demonstration through admissible evidence that the clothing

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429 Pa. 222, *226; 239 A.2d 332, **335;
1968 Pa. LEXIS 793, ***7
was stolen, the corpus delicti was not proven and these convictions must be reversed. However, [HN3] we may not
grant a motion in arrest of judgment on a diminished record, see, e.g., [*227] Commonwealth v. Tabb, 417 Pa. 13, 207
A. 2d 884 (1965), and therefore only a new trial is granted.

3 Nor is this Court aware of any exception to the hearsay rule permitting admission of the above testimony. Compare Commonwealth v.
Maccaglia, 24 Beaver Cty. L.J. 25 (1962).

The petition for allocatur is granted, the order of the Superior Court is reversed, the judgments of sentence of the Court
of Oyer and Terminer of Allegheny County are reversed, [***8] and new trials are granted.