Appeal from Judgment of Sentence of Court of Common Pleas of Montgomery County, Criminal Division, to 3437.1, 3437.2 of July Term, 1975. No. 1871 October Term, 1976.
Daniel-Paul Alva, Philadelphia, for appellant.
Eric J. Cox, Conshohocken, with him James A. Cunningham, Pottstown, Ross Weiss, Elkins Park, and William T. Nicholas, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion, in which Spaeth, J., joins.
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The issue presented on this appeal is a narrow one: Is the crime of attempted theft of the contents of an automobile a lesser included offense of the crime of attempted theft of an automobile? We hold that it is and therefore affirm the conviction.
On July 18, 1975, at approximately 12:00 noon, a detective of the Lower Merion Township police was on assignment surveilling a shopping center parking facility for the specific purpose of looking for larcenies of and from automobiles. While on duty the officer observed a Chevrolet occupied by two males, one white and one black, enter the parking area, drive slowly up and down the parking lanes, proceed down a ramp to a lower level and then park approximately 25 feet from a parked 1973 Chevrolet Monte Carlo. The appellant, a black male who was the passenger in the car, walked over to the Monte Carlo, bent over the door and started moving his arms up and down. The companion, noticing the approaching detective, pulled along side the Monte Carlo, the appellant entered his car and they quickly drove off. The detective ran to the locked Monte Carlo, noticed that there were scratches on the door and door lock, that the key slot was horizontal and found a key tumbler lying on the ground with fresh, soft putty on it.*fn1 The detective then used a portable radio to call in the description and license number of the automobile. Appellant's car was stopped by a patrol car about four tenths of a mile from the parking lot. The detective arrived approximately three minutes later, placed the appellant and his companion under arrest and observed inside the car, in plain view, a pair of channel lock pliers, and a pair of vicegrip pliers which can be used for removing car locks.
[ 244 Pa. Super. Page 337]
Appellant was indicted for attempted theft of a 1973 Chevrolet Monte Carlo automobile, possession of certain instruments of crime and conspiracy and was found guilty in a non-jury trial of criminal attempt to commit theft of movable property (contents of a certain motor vehicle) and of conspiracy. Timely post-trial motions were filed, argued and denied. Appellant was sentenced to 6-12 months for the attempted theft of movable property, sentence on the conspiracy conviction was suspended. This appeal followed.
Appellant contends on this appeal that he was found guilty of a crime for which he was not charged, that attempted theft of the contents of an automobile is not a lesser included offense of attempted theft of an automobile, and that the evidence did not prove appellant's intent to commit the specific crime for which he was found guilty. The Commonwealth argues that the charge of attempted theft of the contents of an automobile is an integral part of the charge of attempted theft of an automobile for which the appellant was charged and indicted. In essence, its argument is that the theft of an automobile necessarily involves the theft of its contents and further that the appellant was not unfairly surprised when convicted of the attempted theft of the car's contents.
It is well-settled that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it. Commonwealth v. McLaren, 441 Pa. 522, 271 A.2d 281 (1970); Commonwealth v. Soudani, 398 Pa. 546, 159 A.2d 687, cert. denied, 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960); Commonwealth v. Ackerman, 239 Pa. Super. 187, 361 A.2d 746 (Price, J., filed 3/29/76); Commonwealth v. Wilds, 240 Pa. Super. 278, 362 A.2d 273 (Hoffman, J., filed 3/29/76); Commonwealth v. Melnyczenko, 238 Pa. Super. 203, 358 A.2d 98 (1976); Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975); Commonwealth v. White, 232 Pa. Super. 176, 335 A.2d 436
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(1975); Commonwealth v. Nace, 222 Pa. Super. 329, 295 A.2d 87 (1972). The essential inquiry thus becomes whether the greater offense of attempted theft of an automobile, a felony of the third degree, "necessarily involves," the lesser offense of theft of the contents of the automobile, a misdemeanor of the third degree in this case.*fn2 Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941); Commonwealth v. Ackerman, supra; Commonwealth v. Nace, supra. We therefore must determine whether all of the elements of attempted theft of the contents of an automobile are included in the greater offense of attempted theft of the automobile itself. Commonwealth v. Ackerman, supra; Commonwealth v. Carter, supra; Commonwealth v. Nace, supra.
An examination of some of the prior cases handed down by this Court is helpful in illustrating the required analysis when an application of the lesser included offense rule is in controversy. In Commonwealth v. Ackerman, supra, our Court concluded that unlawful restraint (18 Pa.C.S. § 2902) was not a lesser included offense in the crime of kidnapping (18 Pa.C.S. § 2901) because the element of serious bodily injury was a distinct element of the crime of unlawful restraint. Our Court specifically noted that due to the divergence in degree of the elements of bodily injury in the two crimes, proof of kidnapping was not necessarily proof of unlawful restraint. Likewise, in Commonwealth v. Ruehling, 232 Pa. Super. 378, 334 A.2d 702 (1975), our Court, through this writer, held that the crime of indecent assault (18 Pa.C.S. § 3126) did not merge nor was it a lesser included offense in the crime of statutory rape (18 Pa.C.S. § 3122). This conclusion was arrived at after noting that the requirement that the act be offensive or forceful is a necessary prerequisite to a conviction of
[ 244 Pa. Super. Page 339]
indecent assault but not for statutory rape. Id. at 383, 334 A.2d at 704.
Unlawful entry under the old Crimes Code had been held to be a lesser included offense in the crime of burglary. Commonwealth v. Freeman, 225 Pa. Super. 396, 313 A.2d 770 (1973). In that case the evidence was held to be insufficient to support the inference that the defendant intended to commit a larceny after unlawfully entering a building, but it was sufficient to prove that he intended some crime. His conviction for burglary was vacated by our Court and the case was remanded to enter a verdict of guilty of unlawful entry. See Commonwealth v. Melnyczenko, 238 Pa. Super. 203, 358 A.2d 98 (1976). The test therefore appears to be whether all of the essential elements of the lesser offense are included in the greater. Commonwealth v. Ackerman, supra; Commonwealth v. Carter, supra; Commonwealth v. Nace, supra. If the essential elements of attempted theft of the contents of an automobile are also elements of attempted theft of the car, then the former, being less culpatory, is a lesser included offense. Commonwealth v. Ackerman, supra. This precise issue has not been decided in any reported Pennsylvania case that we could find. However, unlike the preceding cases in which our appellate courts were faced with ...