Concurring and Dissenting Opinion by
Mr. Justice Pomeroy:I join in the opinion of the Court with respect to the appeal at No. 67 and agree with much that is said with respect to the appeal at No. 68. I disagree, however, with the last portion of the opinion concerning that appeal for much the same reasons which compelled my separate concurrence in Commonwealth v. Whitner, 444 Pa. 556, 562 (1971). As set out more fully in that opinion, the majority’s concern with the issue of possession in a prosecution for larceny and burglary was in my view academic, for none of the elements of either crime had been made out. In this case, while I would again agree that appellant has been shown to be in literal or constructive possession of the stolen goods, this fact alone does not warrant his conviction for burglary. I am therefore obliged to dissent.
The crime of receiving stolen goods (Act of June 24, 1989, P. L. 872, §817, as amended, 18 P.S. 4817), requires possession of goods knowing them to have been stolen. Before our decision in Commonwealth v. Owens, 441 Pa. 318, 271 A. 2d 230 (1970), the rule in Pennsylvania was that the fact that a person was in possession of stolen property was sufficient to support a presumption, which was rebuttable, that the person knew that the goods were stolen. In Owens the Court held that such a presumption did not meet the “more likely than not” test mandated by the United States Supreme Court in Leary v. U. S., 395 U.S. 6, 23 L. Ed. *1152d 57 (1970). My dissent from the Owens holding was based on the following: In Leary, the Supreme Court reexamined the standards by which to measure criminal statutory1 presumptions in light of due process requirements. The upshot of its analysis of its prior case law on the subject was thus stated: “. . . a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary’, and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. And in the judicial assessment the congressional determination favoring the particular presumption must, of course, weigh heavily.”
In the normal receiving stolen goods situation, the proved facts are (1) that goods were stolen; (2) that the theft had occurred but recently; (3) that the stolen goods were found in the possession of the defendant; and (4) that no explanation as to the possession has been made. To use the Leary formulation, I believe that practical human experience allows it to be said with substantial assurance that the presumed fact (that of knowledge of the stolen character of the goods) “is more likely than not” to flow from the proved facts, above stated, on which the assumed fact is made to depend.2 Moreover, when we considered Owens, it *116was my belief, still held, that the particular presumptions treated in Owens and Lewy, respectively, were quite distinguishable, notwithstanding that each was bottomed on possession of goods. I therefore disagreed that the decision in Lewy was controlling on us in Owens. Cf. Turner v. U. S., 396 U.S. 398, 24 L. Ed. 2d 610 (1970) (holding valid, as tested by the Lewy rule, the provisions of §2 of the Act of February 9, 1909, 35 Stat. 614, as amended, 21 USC 174, “insofar as it permits a jury to infer that heroin possessed in this country is a smuggled drug”. 396 U.S. at 416, 24 L. Ed. 2d 623).
Following from my continued belief that the Pennsylvania presumption was reasonable in the light of experience and not constitutionally prohibited, I cannot quarrel with the Court’s present approval of a permissible inference in place of the forbidden presumption with respect to knowledge of the stolen character of the possessed articles. Thus I agree that the conviction of Shaffer of the crime of receiving stolen goods was supported by sufficient evidence and that the charge of the court was not in error in allowing the inference of knowledge.
Shaffer, however, was convicted not only of receiving stolen goods, but also of burglary of two residences and of larceny. As I indicated in Commonwealth v. Whitner, supra (concurring opinion), neither of these crimes includes any element of continuing possession of stolen property. To sustain a conviction of burglary there must be proof beyond a reasonable doubt that the accused entered a building with the intent of committing a felony. To sustain a conviction of larceny, there must be proof beyond a reasonable doubt that the accused took and carried away the personal property of another with the specific intent of depriving the owner permanently of the property. Unquestion*117ably, these elements of the two crimes under consideration, like other crimes, can be proved by circumstantial evidence. Possession may be an important link in a chain of circumstantial evidence, and it concededly supports an inference, if not a presumption, that someone stole the goods. I find it difficult to believe, however, that it is more likely than not that the possessor was himself the burglar and the thief, or that, even if such an inference is permissible, it is the equivalent of proof beyond a reasonable doubt of the elements of the two crimes in issue.
The cases cited by the majority do not indicate a different conclusion. Wilson v. U. S., 162 U.S. 613, 40 L. Ed. 1090 (1896), quoted with approval in Rugendorf v. U. S., 376 U.S. 528, 536-7, 11 L. Ed. 2d 887, 894 (1964), established that “[possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession”. I agree that appellant Shaffer’s possession was guilty, but only so far as it provided the basis to show knowledge to convict him as a receiver. In accord with this view is Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 206 A. 2d 43 (1965), where the defendant in possession was found guilty of receiving stolen goods, but acquitted of the charges of burglary and larceny. While there admittedly is some Pennsylvania law to support the majority position, see Commonwealth v. Newman, 276 Pa. 534, 120 Atl. 474 (1923) and cases cited therein, it preceded Owens, Leary and Turner, and cannot be considered controlling now.
As the Owens opinion notes, the presumption of guilty knowledge there involved (and likewise involved in the ease at bar) is not statutorily prescribed, but was judicially created in determining the quantum of proof required to make out the crime of receiving stolen goods. For purposes of the Owens case and the instant case, I do not consider this distinction from the basis of the presumption in Leary to be of importance.
Although held to violate due process precepts in Commonwealth v. Owens, supra, such a presumption has been held to not be violative to a defendant’s privilege against self-incrimination. See, e.g., Turner v. United States, 396 U.S. 398, 417, 24 L. Ed. 2d 610 (1970).