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COMMONWEALTH PENNSYLVANIA v. GERARD J. FIERST (07/12/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GERARD J. FIERST, JR.

No. 282 April Term 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pa., Criminal Div., granting the Motion for Demurrer, entered on November 1, 1976 at No. CC7606570A.

COUNSEL

Robert L. Eberhardt, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.

John R. DeAngelis, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 257 Pa. Super. Page 442]

Appellee was charged with criminal attempt*fn1 to commit theft. He pleaded not guilty and waived jury trial. At the close of the Commonwealth's case, the lower court sustained appellee's demurrer to the evidence, and the Commonwealth has appealed.*fn2

The lower court stated that its reason for sustaining the demurrer was that the information filed against appellee

[ 257 Pa. Super. Page 443]

    was incomplete in that it did not contain "a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint . . . ." Pa.R.Crim.P. 225(b)(5). This was error. "Every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer, or on motion to quash such indictment, before the jury shall be sworn, and not afterward . . . ." 19 P.S. § 431.*fn3 The defect in the information in this case was that it did not specify what kind of theft appellee was charged with attempting.*fn4 As this defect could have been amended, Pa.R.Crim.Pa. 229 ("The court may allow an information to be amended when there is a defect in . . . the description of the offense . . . ."), appellee waived any claim based on the defect by pleading and proceeding to trial. Commonwealth v. Brown, 229 Pa. Super. 67, 323 A.2d 845 (1974); Commonwealth v. Lewandowski, 74 Pa. Super. 512 (1920).*fn5

[ 257 Pa. Super. Page 444]

Although the lower court's stated reason for sustaining the demurrer was wrong, we should affirm its order if there appears a correct reason to support it. Commonwealth v. Dancer, 460 Pa. 95, 101 n. 5, 331 A.2d 435, 438 n. 5 (1975); Commonwealth v. Whitehouse, 222 Pa. Super. 127, 292 A.2d 469 (1972). In this case, the only correct reason that we can perceive would be that the Commonwealth had failed to offer sufficient evidence to prove each element of the crime charged. The evidence was, however, sufficient.

In the early morning of August 28, 1976, John Ross and his family were watching television aboard their houseboat, which was docked at the Oakmont Boat Service in Oakmont, Pennsylvania. Ross also owned a pusher tugboat, the Lilly Belle, which was docked a short distance away from his houseboat at the same marina. At about 1:30 a. m. Ross and the other members of his family heard one of the Lilly Belle's engines fire. The Lilly Belle had General Motors diesel engines, which emit a distinctive sound when fired and started; the Lilly Belle was the only boat at the marina so equipped. Hearing this distinctive sound, Ross's daughter ran out of the houseboat and down the dock. She saw appellee outside the pilot house on the top deck of the Lilly Belle. Ross, having delayed long enough to pull on his boots, followed behind his daughter, saw appellee, and shouted to him to get off. Appellee climbed down onto the dock. Ross noticed that the door of the pilot house was open, though he himself had closed it earlier in the evening, and that one of the stern mooring lines that he had earlier secured had been cast off. He also saw that appellee was holding some tools, among them a screwdriver and a pair of red-handled, side-cutting, eight-inch pliers, which Ross recognized as brand-new tools that he had recently bought.

[ 257 Pa. Super. Page 445]

On appeal the proper test to apply in determining the validity of a demurrer is whether the evidence of record and the inferences reasonably drawn therefrom would support a verdict of guilty. Commonwealth v. McDade, 197 Pa. Super. 522, 180 A.2d 86 (1962); Commonwealth v. Wheeler, 200 Pa. Super. 284, 295, 189 A.2d 291 (1963). In making such determination we must read the evidence in the light most favorable to the Commonwealth's case. Commonwealth v. Deyell, 399 Pa. 563, 160 A.2d 448 (1969). Commonwealth v. Green, 210 Pa. Super. 482, 484, 233 A.2d 921, 922 (1967).

Appellee was charged with attempt, the elements of which are intent to commit a specific crime, and any act that constitutes a substantial step toward the commission of that crime. The Crimes Code, supra n. 1; 18 Pa.C.S. § 901. The testimony reviewed above would support a finding that appellee intended to steal the Lilly Belle,*fn6 and that in entering the pilot house, starting the engines, and casting off one of the mooring lines, appellee had taken substantial steps to that end.

The order of the lower court is vacated, and the case remanded for trial.


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