No. 1043 Philadelphia, 1980, Appeal from the judgment of sentence of the Court of Common Pleas of Lycoming County, Criminal Division, No. 79-10,301.
Peter T. Campana, Williamsport, for appellant.
Robert F. Banks, First Assistant District Attorney, Williamsport, for Commonwealth, appellee.
Cavanaugh, Johnson and Lipez, JJ.
[ 303 Pa. Super. Page 386]
This is an appeal from a judgment of sentence for "retail theft, third or subsequent offense," under the Crimes Code, 18 Pa.C.S. § 3929(a)(1) and (b)(1)(IV) (Supp.1982-1983). We agree with defendant's argument that prior convictions for shoplifting under the 1939 Penal Code may not be used to increase the grade of a retail theft offense under 18 Pa.C.S. § 3929(b)(1), and only prior convictions for retail theft under the Crimes Code may be used for this
[ 303 Pa. Super. Page 387]
purpose.*fn1 Since the Commonwealth here put into evidence only prior convictions for shoplifting under the 1939 Penal Code,*fn2 we vacate the judgment of sentence and remand for
[ 303 Pa. Super. Page 388]
sentencing on retail theft, first offense, which is a summary offense under 18 Pa.C.S. § 3929(b)(1)(I) (Supp.1982-1983).
Section 816.1(a) of the 1939 Penal Code defined the offense of shoplifting and set the penalty therefor as follows:
Whoever shall willfully take possession of any goods, wares or merchandise offered for sale or exhibited by any person with the intention of converting the same to his own use without paying the purchase price thereof, or with the intention of depriving the owner of the possession thereof without his consent, shall be guilty of shoplifting, and, upon conviction thereof in a summary proceeding, shall be sentenced to pay a fine of not less than twenty-five dollars ($25) and not more than five ...