No. 315 January Term, 1976, Appeal from the Order of the, Superior Court, Affirming the Judgment, of Sentence of the Court of Common, Pleas, Criminal Trial Division, of, Philadelphia, at No. 968 July Term, 1974.
Defender Assn. of Phila., Benjamin Lerner, Defender, Leonard Sosnov, Asst. Defender, John W. Packel, Asst. Defender, Chief, Appeals Div., for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., concurs in the result. Nix, J., filed a dissenting opinion in which Pomeroy, J., joined.
Appellant Robert Adams was indicted under the Crimes Code, 18 Pa.C.S.A. §§ 3921 ("Theft by unlawful taking or disposition") and 3925 ("Receiving stolen property") for theft of an automobile.*fn1 A court sitting without jury convicted appellant of violating section 3921. Upon appellant's request for a disposition under section 3925, the court acquitted him thereunder solely because it believed appellant could not be convicted under both sections. Post-verdict motions were denied and appellant was sentenced to three years
probation. The Superior Court affirmed without opinion (Hoffman, J., joined by Spaeth, J., concurring). We granted appellant's petition for allowance of appeal.*fn2
Appellant contends that the evidence is insufficient to sustain his conviction because there is no evidence that he stole the automobile. We agree with the trial court that one who exercises unlawful control over moveable property of another may be convicted of theft under 18 Pa.C.S.A. § 3921, even without evidence that he originally misappropriated the property. We therefore affirm.
Around June 19, 1974, an automobile valued at $3500 was stolen from the complainant. Two days later, he and a friend saw appellant standing next to the stolen car. The friend approached appellant, who, after starting the engine, offered to sell the car for $100. The police were called and arrested appellant.
The issue appellant raises is one of the first impression in this jurisdiction. Section 3921(a) provides that
"A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, moveable property of another with ...