236 Pa. Super. 534 | Pa. Super. Ct. | 1975
Concurrence Opinion
Concurring Opinion by
I concur in the result reached by the Majority. I reach that result, however, by a somewhat different route.
Appellant contends that the evidence was insufficient to prove that he was the “thief”
The Majority points to §3921 (a) of the Crimes Code, supra, to sustain appellant’s conviction: “A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” (Emphasis added.) Thus, §3921 (a) does not require an initial, unlawful “taking” for an actor to be a “thief.” At the same time, §3925 of the Code provides that “[a] person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen unless the
The treatment of theft in the Crimes Code was an effort to clarify the confused and often highly technical law of “larceny” under the Penal Code:
“ ‘Formerly, Pennsylvania had a hodgepodge of six blackmail sections, eight larceny sections, and fourteen sections on embezzlement and taking by fraud. Because most of these laws were enacted piecemeal, with little regard for existing statutes, one was bewildered with the attempts to make sense out of needlessly frustrating overlap, the chaos primarily resulting from common law interpretations and the lack of correlation between punishment compared to the type of unlawful taking and amount taken.” Comment, Theft and Related Offenses In the New Pennsylvania Crimes Code: A New Concept In Property Offenses, 78 Dick. L. Rev. 44, 45 (1973).
The Comment’s analysis of §3921 is as follows: “This section encompasses the majority of former theft-type
I am able to concur in the result, however, because of §3902 of the Code: “Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.”
In the instant case, I find no prejudice to appellant. He was charged with Theft by Unlawful Taking or Disposition; the evidence was ample that he “retain [ed] . . . movable property of another knowing that it ha [d] been stolen. . ..” Appellant may not successfully defend against a charge of theft, as he attempts to do now, by asserting that the Commonwealth proved that he was guilty of theft by receiving stolen property, but that he was only charged with theft by unlawful taking or disposition.
Spaeth, J., joins in this concurring opinion.
. Act of December 6, 1972, P.L. 1482, No. 334, §1, eff. June 6,1973; 18 Pa. C.S. §3921.
. The 1939 Penal Code did not define larceny, but stated simply that “[w]hoever commits larceny, is guilty of felony...” Act of June 24, 1939, P.L. 872, §807; 18 P.S. §4807. The common law, however, required that “caption and asportation” be proven. See Theft and Related Offenses in the New Pennsylvania Crimes Code: A New Concept in Property Offenses, 78 Dick. L. Rev. 44, 51 (1973).
. My disagreement with the Majority is not merely academic. If we are to avoid the artificial complexities of the common law and the Penal Code treatment of larceny and related offenses, then our courts must faithfully adhere to the scheme set forth in the new code.
. See, generally, Theft and Related Offenses in fhe New Pennsylvania Crimes Code: A New Concept in Property Offenses, supra at 46-49.
Lead Opinion
Opinion
Judgment of sentence affirmed.