Commonwealth v. Frey

• Decision Date: 20 October 1978
• Parties: COMMONWEALTH of Pennsylvania v. Frederick Robert FREY, Appellant.
• Court: Pennsylvania Superior Court

392 A.2d 798

258 Pa.Super. 288

COMMONWEALTH of Pennsylvania v. Frederick Robert FREY, Appellant.

Superior Court of Pennsylvania.

October 20, 1978

Argued Dec. 9, 1977.

John Rogers Carroll, Philadelphia, for appellant.

Joseph M. Dougherty, III, Asst. Dist. Atty., Springfield, for Commonwealth, appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE Judge:

The single issue which appellant raises in this appeal is whether Delaware County had venue-jurisdiction to try charges of possession of a stolen auto, possession of an auto with a defaced serial number, and sale of such an auto, where the theft occurred in another state, and appellant and the ultimate purchaser of the car lived outside Delaware County. Appellant argues that the only connection this alleged crime had with Delaware County was that the signatures on the Assignment of Certificate of Title from himself to a Nancy Thorington were notarized by a Delaware County notary, which appellant contends was insufficient, standing alone, to give that county jurisdiction. We are persuaded by appellant's arguments and reverse his conviction.

The facts are as follows. On April 24, 1972, a 1967 Corvette automobile was stolen from the parking lot of the Tri-State Mall in the State of Delaware. This automobile, bearing the serial number 194677S118930, was registered to Lawrence G. Strohm. In a separate incident several months later, in June of 1972, Paul DiMaio, owner of a 1966 Corvette recently titled in Pennsylvania, serial number 194676S118913 was involved in an accident which resulted in extensive damage to his vehicle. Mike Tirpak, owner of an auto body shop, purchased DiMaio's wrecked auto. Tirpak stripped the vehicle selling or using the various parts. The bent frame and sub-frame were sold in October of 1972 to Joseph Heyne, a teacher of auto repair at a vocational school for $75.00. Heyne sold this frame and sub-frame to appellant, Frederick Frey, transferring title to Darlene Frey, appellant's wife at the time. The title to this vehicle correctly listed the identification number as 194676S118913, the serial number of DiMaio's wrecked 1966 Corvette. At the time of the transfer, Heyne was a resident of Norristown, Montgomery County. Appellant and his ex-wife were residents of West Chester, Chester County.

Appellant testified that he is a professional auto race driver and that he frequently builds or repairs old Corvettes using parts he has purchased. When appellant bought the frame and sub-frame from Heyne, appellant then asked Heyne to use that frame to build a reconstructed 1967 Corvette. Appellant supplied Heyne with the "body" ^[1] for the vehicle, allegedly taken from Lawrence Strohm's stolen 1967 Corvette. After Heyne completed the work, Darlene Frey, appellant's wife, took title as indicated above to the now completed vehicle, which was listed on the document of title by serial number 194676S118913. In June of 1974, Darlene Frey transferred the title to this particular vehicle to appellant. Appellant later transferred title for this vehicle to Nancy Thorington a resident of Montgomery County at the time of the sale.

The lower court decided that it had jurisdiction of this case because the document of title, transferring title from appellant to Thorington, was notarized by M. A. Sculley of Newtown Square, Delaware County, Pennsylvania. The lower court therefor found that "(T)he logical conclusion of these facts and the permissible inferences to be drawn from them is that both Miss Thorington and (the appellant) proceeded to the auto tag office in Newtown Square where the transfer was notarized." We hold that the lower court erred by assuming jurisdiction based on the above inference.

According to statutory law, a notary may exercise his power outside his county of residence. ^[2] When a notary public does certify a document, he attests that the document has been executed or is about to be executed, that the notary knows that he is confronted by the signer, and that the signer is asserting the fact of his execution. In re Bokey's Estate, 412 Pa. 244, 252, 194 A.2d 194 (1963). Notarization certifies the fact of execution by a person who purports to be the signer but not any fact beyond that, such as the place of notarization. As this court has said,

"(A) notary's certificate shall be read and received in all suits in evidence of the Facts therein certified; not of Facts not certified but attempted to be inferred from those facts. Bell v. Anderson, 143 Pa.Super. 56, 66, 17 A.2d 647, 651 (1941). (Emphasis in the original.)

This rationale applies with equal force to the case now at bar.

The place of notarization is not a certified fact nor is it inferable from any certified fact. Though a notary is required to indicate the political subdivision and the county in which he maintains his office, ^[3] this is not an attestation of the place of notarization.

The Commonwealth cites Commonwealth v. Lawrence, 282 Pa 128, 127 A. 465 (1925) for the proposition that "(i)n the absence of uncontradicted evidence to the contrary, the conviction is conclusive the crime was committed where it was charged to have been done in the...