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COMMONWEALTH v. BELCHER (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
BELCHER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1974, Nos. 454 and 455, in case of Commonwealth of Pennsylvania v. Robert L. Belcher.

COUNSEL

Hugh C. Clark, for appellant.

Harry M. Spaeth, with him Rosalyn K. Robinson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Hoffman, J.

Author: Hoffman

[ 233 Pa. Super. Page 214]

Appellant contends that the lower court erred in holding that receiving a stolen automobile is a felony of the third degree*fn1 under the new Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, effective June 6, 1973, as amended; 18 Pa. C.S. §§ 3903, 3925.

Richard M. Seneca testified that in the first or second week of January, 1974, he parked his 1972 Corvette on a street in Bristol. When he returned, he found that his car was gone. On February 7, 1974, a police officer observed appellant driving the Corvette with an expired inspection sticker. The officer followed the car until appellant parked it and got out. The officer then asked appellant for his

[ 233 Pa. Super. Page 215]

    driver's license and owner's card; appellant could produce neither. A serial number check with the National Crime Information Center indicated that the car had been stolen; appellant was then arrested.

Appellant was indicted on March 11, 1974, on charges of receiving stolen property and unauthorized use of an automobile, Crimes Code, §§ 3925 and 3928. On May 7, 1974, appellant was found guilty of both charges by Judge Alex Bonavitacola of the Common Pleas Court. Appellant was sentenced to two to eleven months of imprisonment on the charge of receiving stolen property and one year of probation on the charge of unauthorized use of an automobile, the two sentences to run consecutively. Post-trial motions were denied. This appeal followed.

Appellant's sole contention on appeal is that under the Crimes Code, § 3925, the crime of receiving stolen property, where that property is an automobile, does not amount to a felony of the third degree unless it is proven that the defendant is in the business of buying or selling stolen property. Appellant contends that the receiving stolen property charge amounted at most to a misdemeanor of the first degree, Crimes Code, § 3903(b), carrying a maximum prison sentence of five years, Crimes Code, § 1104(1), and that therefore his case should have been tried originally in the Municipal Court, rather than in the Common Pleas Court under Rule 6001, Pa. R.Crim.P.*fn2

Under the new Crimes Code, various forms of the unlawful taking of property, which were formerly denominated separate crimes, are consolidated into the crime of theft, § 3902. These include theft by unlawful taking or disposition, § 3921; theft by deception, § ...


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