No. 733 October Term, 1976 Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment No. 1990, May Session, 1975.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Price, J., dissents.
[ 245 Pa. Super. Page 159]
Following a non-jury trial in July, 1975, appellant was convicted of unauthorized use of an automobile.*fn1 Post-trial motions were denied, and appellant was sentenced to a prison term of six to twenty-three and one-half months. This appeal followed. For reasons hereinafter set forth, we reverse.
The factual history of the case can be summarized as follows: On January 6, 1975, appellant was observed operating a 1966 Buick which was listed on a police "hot sheet" for stolen cars. Officer Frederick Evans pursued the vehicle and, by blowing his horn, signaled appellant to stop. Appellant continued on for approximately one and one-half blocks before pulling over. It was not established whether or not appellant was attempting to evade Officer Evans, since it appears that due to traffic and street design, it may have been impractical for appellant to stop sooner without blocking traffic. In any event, it is clear that appellant cooperated fully when he
[ 245 Pa. Super. Page 160]
was informed that the car was listed as stolen. Appellant testified that a man by the name of Paul Roy, who appellant had seen driving the car the previous week, had loaned him the car. He also testified that when arrested, he had informed the officer of having borrowed the car from Roy. This point was rebutted by Officer Evans who testified that upon his arrest, appellant stated that his female passenger "had nothing to do with it," (N.T. 19), but did not mention Roy.
The following facts were stipulated to by counsel: (1) The owner of the car was Mr. Pietro Lauini, (2) Mr. Lauini had not given appellant permission to drive the automobile, (3) The automobile was reported as stolen on December 11, 1974, and (4) Appellant was incarcerated at the Philadelphia Detention Center from December 8 until December 14, 1974.
Upon the above facts, the trial judge found appellant guilty of unauthorized use of an automobile. Hence this appeal.
Appellant contended in post-trial motions, and now argues on appeal, that the evidence presented was not sufficient to prove beyond a reasonable doubt the fact that appellant knew the automobile was stolen or that he knew he did not have permission of the owner to operate the automobile. In its opinion, the lower court responded to this contention by stating that mens rea is not an element of the crime of unauthorized use of an automobile. In so holding, the court relied on Commonwealth v. Grant, 235 Pa. Super. 357, 341 A.2d 511 (1975), and Commonwealth v. Cross, 232 Pa. Super. 496, 335 A.2d 756 (1975), in which we held that the crime of unauthorized ...