Appeal from the Order of the Court of Common Pleas, Berks County, Pennsylvania, Criminal Division, dated June 10, 1976, at No. 76035701.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellant.
Charles A. Haddad, Reading, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.
[ 248 Pa. Super. Page 265]
At the behest of a friend, and for the sum of $30.00, appellee removed an oil burner from a house under construction by a contractor who allegedly owed appellee's friend back wages for construction work. For his assistance in this self-help venture, appellee was arrested and charged with burglary, theft and conspiracy. The oil burner was returned to its owner, who signed a statement that he had suffered no financial loss and did not object to the charges being withdrawn. Subsequently appellee petitioned the court below for discharge pursuant to Pa.R.Crim.P. 315,*fn1 and the court, BERTOLET, J., ordered the discharge in accordance with the Rule. The Commonwealth appealed the order, contending that burglary and larceny are crimes of force and violence by their very nature and therefore, the discharge was improper.
In Commonwealth v. Alvarez, 216 Pa. Super. 394, 268 A.2d 192 (1970), we determined that Rule 315 settlements are limited to cases wherein (1) no force or violence or threat thereof is present, (2) the aggrieved party has a remedy therefor by civil action, and (3) it appears that the public interest will not be materially affected. After meeting these three initial requirements, discharge may be ordered either upon showing that satisfaction has been made to the aggrieved party or application for discharge with an agreement between the aggrieved party and the defendant, and consent of the Commonwealth's attorney.
We have no difficulty concluding, and the Commonwealth apparently agrees, that the aggrieved party has a
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civil remedy in this case, the public interest will not be materially affected by the discharge, and satisfaction has been made to the aggrieved party. The Commonwealth alleges, however, that Rule 315 does not apply to burglary and theft, which it characterizes as crimes of force or violence by their very nature. We do not agree. While burglary was a common law crime of force or violence as contended by the Commonwealth, common law crimes no longer exist in Pennsylvania since enactment of the Crimes Code.*fn2 The current burglary statute defines the crime as the entry of a building or occupied structure with intent to commit a crime therein,*fn3 and eliminates the common law "breaking" requirement and its attendant illogical distinctions. We must therefore reject the Commonwealth's argument based on Blackstone's definition of burglary as a very heinous offense to be punished by death.
Furthermore, the definition of burglary in the Uniform Firearms Act*fn4 as a crime of violence does not affect our disposition of settlement since that definition is limited to firearms violations.
Finally, in Alvarez, supra, we said that the new Rule 315 "appears in some particulars to be an enlargement of the area within which such settlements are authorized, i. e., all offenses rather than those specifically named in the former Act."*fn5 216 Pa. Super. 394, 396, 268 A.2d 192, 193. There was no allegation in this case that the crime was committed with actual force or violence or the threat of force or violence. To the contrary, the facts of the ...