Com. v. Pittman

• Decision Date: 16 November 1955
• Citation: 179 Pa.Super. 645,118 A.2d 214
• Parties: COMMONWEALTH of Pennsylvania, v. Jack PITTMAN, Appellant.
• Court: Pennsylvania Superior Court

Page 214

118 A.2d 214

179 Pa.Super. 645

COMMONWEALTH of Pennsylvania, v. Jack PITTMAN, Appellant.

Superior Court of Pennsylvania.

Nov. 16, 1955.

Rehearing Denied Nov. 28, 1955.

Donald J. Goldberg, Albert S. Oliensis, Garfield W. Levy, Philadelphia, for appellant.

William T. Gennetti, Victor Wright, Jr., Asst. Dist. Attys., Vincent G. Panati, First Asst. Dist. Atty., Samuel Dash, Dist. Atty., Philadelphia, for appellee.

Before RHODES, P. J., and HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE, and ERVIN, JJ.

RHODES, President Judge.

This appeal is by defendant from conviction and sentence on a charge of receiving stolen goods. Defendant was indicted on bill of indictment No. 1057, December Sessions, 1954, in the Court of Quarter Sessions of Philadelphia County. He was found guilty by the trial judge, sitting without a jury, on March 22, 1955. On April 21, 1955, defendant was sentenced to a term of not less than eleven and one-half months nor more than twenty-three months in the Philadelphia County Prison.

Immediately prior to sentence, defendant's counsel orally moved for a new trial. The motion was denied forthwith. The written motion and the reasons for a new trial were not filed of record until April 27, 1955, six days after sentence and thirty-six days after defendant was found guilty. On April 29, 1955, two days after filing the motion, an appeal was taken to this Court. A trial court cannot be charged with error in refusing to grant a new trial for reasons which were not properly presented to it. It is a principle of law, long established and essential in the orderly administration of our legal system, that matters not raised in or considered by the court below cannot be invoked on appeal, and this is true even when the question belatedly raised is a constitutional one. ¹ Com.v. Paul, 177 Pa.Super. 289, 291, 111 A.2d 374; Com. v. Bozzi, 178 Pa.Super. 224, 229, 116 A.2d 290. To the general rule there may be an exception where some fundamental error seriously affecting the merits of the case and imperatively calling for reversal appears. Com. v. Schultz, 170 Pa.Super. 504, 512, 87 A.2d 69. Although we might well rest there and dismiss the appeal, we have examined the record and we are of the opinion that there is no merit in the appeal. Defendant's present contention, made for the first time on this appeal, is that the Commonwealth failed to prove the essential element of guilty knowledge on the part of the defendant as receiver of the stolen goods.

Charles Johnson, a witness for the Commonwealth, testified that on July 20, 1953, he went on a seven-day vacation, leaving his apartment unoccupied. Upon his return he found that his apartment had been entered and that a television set and a lady's wrist watch were missing. On July 28, 1953, Johnson and a detective went to defendant's apartment, at 2222 North 13th Street, Philadelphia, and there found the television set and wrist watch which Johnson identified as his property.

The detective testified that defendant attempted to explain his possession of the goods by saying that they had been pawned to him by an individual who owed him a bill. This was corroborated by Johnson. Further investigation by the police disclosed that the stolen articles were transported directly from Johnson's home to defendant's apartment in an automobile belonging to an individual known to the police as Rusty. At the time of trial Rusty had not been apprehended by the police.

Defendant testified that he had known Rusty for several years, and that Rusty lived at 2000 Camac Street, Philadelphia. Defendant further testified that he operated a restaurant and that Rusty ate there almost every day. According to defendant, Rusty, accompanied by two men, drove up to defendant's place of business at three o'clock one morning; that he told defendant that he and his wife had separated and had divided their property; and that he requested defendant to keep the articles for him until he found a place for them. In contrast to his previous statement to the detective, defendant at the trial asserted that he had not purchased the articles or received them in pawn. On cross-examination defendant said that he had seen Rusty on the street several times after defendant's arrest, but that he did not talk to him because 'he didn't want to talk to me.' Defendant also testified that on one such occasion he saw Rusty enter a store, that Rusty saw him, but that when defendant entered the store Rusty had...