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COMMONWEALTH v. MCKENNION (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
MCKENNION, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, Nos. 2364 and 2365 of 1973, in case of Commonwealth of Pennsylvania v. Lawrence P. McKennion.

COUNSEL

Arthur K. Dils, and Dils and Diveglia, for appellant.

Edwin W. Frese, Jr., and Marion E. MacIntyre, Deputy District Attorneys, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this dissenting opinion.

Author: Price

[ 235 Pa. Super. Page 161]

Appellant, Lawrence P. McKennion, was tried on May 6, 1974, before a judge sitting without a jury, and convicted

[ 235 Pa. Super. Page 162]

    of theft by unlawful taking or disposition.*fn1 The testimony revealed that on November 5, 1973, at approximately 6:00 a.m., appellant was observed removing a typewriter from the Labor and Industry Building in Harrisburg, and placing it into his state car. On November 8, 1973, appellant was again seen as he removed a calculator from the Labor and Industry Building and placed it into his own car. On this occasion, appellant was followed by the State Police, who watched appellant take the calculator from the back seat of his car and put it into the trunk.

With this information, the State Police obtained a search warrant for the car and served it upon appellant at the State Police Barracks at 21st and Herr Streets. When they opened the trunk, the officers saw two stolen office machines, a typewriter and a calculator. Appellant was subsequently advised of his Miranda rights and questioned. He admitted the theft of the two machines and stated that he had taken approximately twenty others. All of the machines had been sold to Alderman Irvin Harrison, who paid appellant $25 to $50 for each item. Appellant further indicated that he had taken all of the machines to the back office of Alderman Harrison, and that he believed several were still there.

The State Police then obtained a search warrant for Alderman Harrison's office at 1246 Market Street. The search uncovered nine additional stolen machines.

Appellant was charged with theft by unlawful taking or disposition of the eleven machines in two separate indictments, which were consolidated for trial. Appellant was found guilty on both indictments. Post-trial motions were filed and denied, and on September 11, 1974, appellant was sentenced to two concurrent terms of imprisonment of 6 to 23 months. On October 4, 1974, this appeal was filed.

[ 235 Pa. Super. Page 163]

Appellant first contends that his conviction should be overturned because the Commonwealth introduced evidence obtained as the result of an illegal search. However, appellant failed to raise the legality of the search in a pre-trial application as required by Pa.R.Crim.P. 304 and 305. Therefore, we cannot consider this issue on appeal. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Appellant next asserts that Section 3903 of the Crimes Code in effect at the time of his trial*fn2 is unconstitutional. He believes that Section 3903 placed upon him the burden of proof of an essential element of the crime of theft, that being the value of the stolen property. We cannot agree with appellant's position.

Section 3921(a) of the Crimes Code, "theft by unlawful taking or disposition," describes the elements of the conduct which constitutes theft of movable property:

"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."

"Movable property" is defined in Section 3901 of the Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1 (18 Pa. C.S. § 3901), as "property, the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby have no physical location."

Neither Section 3921 which details the crime nor Section 3901 which describes the property contain the element of value. We believe, therefore, that value is not an essential element of the crime of theft. Rather, the value of the stolen items becomes relevant only to establish the grade of the offense for purposes of imposing sentence.

[ 235 Pa. Super. Page 164]

In the instant case, there is no contention that the evidence was insufficient to establish appellant's culpability in terms of Section 3921(a). Having determined that appellant was indeed culpable of theft, our next inquiry is to ...


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