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COMMONWEALTH v. WARLOW (10/28/75)

decided: October 28, 1975.

COMMONWEALTH
v.
WARLOW, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1974, No. 666, in case of Commonwealth of Pennsylvania v. Eugene Warlow.

COUNSEL

Elaine DeMasse and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

Pierre Blair Pie, II, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van Der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 237 Pa. Super. Page 122]

In the late morning of April 10, 1974, Frederick Aubel, the proprietor of a miscellaneous iron shop, was driving his car on a street adjacent to his business. He noticed that the cellar doors to his building were open, and that two men were loading steel from the basement onto a parked truck. He then proceeded to his office and called the police, who arrived shortly thereafter. Mr. Aubel took the police to the rear of 2503 Germantown Avenue, the scene of the on-going theft, where they found the appellant and Cornwell Hartley*fn1 putting various lengths of structural channels and three-inch or four-inch I-beams onto their truck.

Appellant and Hartley were apprehended and questioned by Officer Sumter of the Philadelphia Police Department, who asked the men why they were removing the property. They replied that a man, whom they knew by sight but not by name, told them they could take the merchandise and split the profits of its sale. Mr. Aubel

[ 237 Pa. Super. Page 123]

    stated that he had not given anyone permission to enter his building. Thereafter, appellant and Hartley were placed under arrest and told to put the items they had taken back into the building.

The co-defendants were indicted and tried in a non-jury trial for burglary,*fn2 theft by unlawful taking or disposition,*fn3 receiving stolen property*fn4 and criminal conspiracy.*fn5 On August 29, 1974, they were acquitted of burglary and convicted on all other counts. Appellant was sentenced to six to twenty-three months in prison for theft by unlawful taking or disposition and receiving stolen goods. Sentence was suspended on the criminal conspiracy conviction.

Appellant first contends that the Act of June 17, 1974, P.L. 356, No. 118, § 1 (18 Pa. C.S. § 3903 (b) and (c)), which amended the Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1 (18 Pa. C.S. § 3903 (b) and (c)), applied to the trial of the instant case. The act in question clarified the Crimes Code by indicating that the Commonwealth has the burden of proof of the market value of stolen goods in theft cases. We agree with this contention.

The legislature's intent to have Act 118 apply to all trials commenced on or after June 17, 1974, is evidenced by Section 2 of the Act which states, "[t]his act shall take effect immediately. Approved the 17th day of June A. D. 1974." Because this trial began in August of 1974, more than two months after ...


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