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COMMONWEALTH PENNSYLVANIA v. ROBERT UTTER (08/01/80)

filed: August 1, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT UTTER, APPELLANT



No. 569 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, No. 584 April Sess. 1978

COUNSEL

John W. Packel, Chief, Appeals, Assistant Public Defender, Leonard Sosnov, Assistant Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Brosky and Eagen,*fn* JJ.

Author: Wickersham

[ 279 Pa. Super. Page 558]

Following a non-jury trial, appellant, Robert Utter, was found guilty of unauthorized use of a motor vehicle. Post-verdict motions were denied and appellant was sentenced.*fn1 On appeal, Utter contends that the evidence was insufficient to sustain the verdict. We disagree and, accordingly, affirm the judgment of sentence.

The pertinent facts are as follows. On March 27, 1978, at approximately 10:00 p. m., two Philadelphia police officers stopped a van driven by Utter for speeding. Appellant was unable to produce a driver's license or vehicle registration card but claimed that the van belonged to a friend in New Jersey. One of the officers then checked the vehicle's status and found that it had been reported stolen on December 3, 1977.

At trial, it was stipulated that the owner of the van did not know appellant and did not give him or anyone else permission to operate it. Appellant, however, denied knowing that the van was stolen. He asserted that it was left in his care by his former employer, John McNamara, who he claimed suddenly had to leave for California. Appellant further testified that he was unable to locate McNamara and believed that he was still in California.

Appellant contends that the evidence was not sufficient to support a conviction for unauthorized use of a vehicle because the Commonwealth failed to establish the requisite intent. Section 3928 of the Crimes Code defines unauthorized use as follows:

(a) Offense defined. -A person is guilty of a misdemeanor of the second degree if he operates the automobile, airplane,

[ 279 Pa. Super. Page 559]

    motorcycle, motorboat, or other motor-propelled vehicle of another without consent of the owner.

(b) Defense. -It is a defense to prosecution under this section that the actor reasonably believed that the owner would have consented to the operation ...


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