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decided: September 27, 1976.


Appeals from Adjudication of the Court of Common Pleas, Juvenile Division, of Montgomery County, at No. 674 and 677 of 1974. NO. 575 OCTOBER TERM, 1975. NO. 576 OCTOBER TERM, 1975.


Calvin S. Drayer, Jr., Asst. Public Defender, Norristown, for appellants.

Milton O. Moss, Dist. Atty., William T. Nicholas, First Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion. Cercone, J., concurs in the result. Jacobs, J., files a dissenting opinion in which Spaeth, J., joins.

Author: Van Der Voort

[ 243 Pa. Super. Page 268]

These cases involve appeals to our Court from adjudications of delinquency of both appellants based upon their having committed conspiracy, burglary and criminal mischief. The challenge in each case is only to the finding by the hearing judge that the appellants had committed a burglary, not to the other findings.

In Lansdale, Pennsylvania, two companies, the J. W. Rex Company and the Spraonic Company, occupied different parts of the same building. Their quarters were separated by a fire door secured by a chain lock. On or about 6:00 P.M., November 24, 1974, Timmothy Meyers, the Division Superintendent of the Rex Company, received

[ 243 Pa. Super. Page 269]

    a call from Floyd Hart, the security guard of the company, advising him that there was a malfunction of equipment of the Rex Company. Mr. Meyers went immediately to the plant and he and the guard went inside the building to seek out the malfunctioning equipment. As they were going down the main hallway which led to the vending machine area, they saw several people who, when they saw Mr. Meyers, ran down the hallway into the Spraonic part of the building. Mr. Meyers and Mr. Hart chased and caught two of them, one being Lester Golden, one of the appellants, and the other being one Joseph Malander. The guard called the Lansdale police who arrived on the scene a few minutes later. An inspection of the premises disclosed that there were opened and partially empty beer bottles standing around, the chain lock had been cut through, the food and cigarette machines had been smashed open and there was an open end wrench inside the cigarette machine.

After being properly advised of his rights, Lester Golden disclosed that he, the appellant Dale Hemmons and Joseph and Dominic Malander had driven in Joseph Malander's car to the yard of the Spraonic Company, had entered Spraonic's part of the building, taking with them three (3) quart bottles of beer. They had cut the chain lock which secured the fire door, with an acetylene torch, and made their way into the Rex Company's part of the building. They had started to drink the beer and they had smashed the vending machine and cigarette machine to get access to the contents of the machines.*fn1 The appellants and their companions admitted that they had entered the building, had cut the chain lock and smashed the vending machines as depicted by Mr. Meyers and Mr. Hart and the Lansdale police officers. Appellants

[ 243 Pa. Super. Page 270]

    claimed that they wanted to find a place to drink beer and wanted to get something to eat.

At the conclusion of the adjudication hearing on December 4, 1974, the hearing judge found the appellants had committed conspiracy, burglary and criminal mischief on November 24, 1974, with respect to the Spraonic Company and the Rex Company Building.*fn2

As we stated hereinabove, the challenge to the adjudication of delinquency is solely to the finding that the appellants committed burglary. They claim that the crimes they intended to commit, i. e., criminal mischief with damages less than $500.00 and under age drinking of intoxicants, were summary offenses and that such criminal offenses are not contemplated as crimes within the description of the offense of burglary as defined in the Crimes Code. The Crimes Code defines the offense of burglary as follows: "a person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter."*fn3

The definition of a crime is embodied in the Crimes Code itself. The Code expressly tells us that: "An offense defined by this title for which a sentence of death or of imprisonment is authorized constitutes a crime."*fn4 (Emphasis added.) The Crimes Code further tells us that: "A person who has been convicted of a summary offense may be sentenced to imprisonment for a term which shall be fixed by the court at not more than 90

[ 243 Pa. Super. Page 271]

    days."*fn5 (Emphasis added.) Thus it clearly appears that imprisonment is authorized for a summary offense and the commission of a summary offense constitutes a crime under our Crimes Code.

The Minority of our Court would have us interpret the Crimes Code in such a way that the word "crime" does not encompass summary offenses. To so interpret the Statute would mean that persons could break into one's home or building, vandalize it to the extent of $500.00, leave it and if apprehended could be charged only with a summary offense. The Minority claims that such an interpretation would further the purposes of the Crimes Code. Such an interpretation would make it easy for persons to break into buildings and do substantial damage inside of them. We believe that the Legislature never ...

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