NO. 38 PHILADELPHIA 1983, Appeal of the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 2692, May Term, 1982 & 2694 May Term, 1982.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Olszewski, Del Sole and Johnson, JJ. Johnson, J., files a concurring statement.
[ 343 Pa. Super. Page 244]
The following issues are presented for our review: 1) Whether Appellant should have been charged and convicted of retail theft, 18 Pa.C.S. § 3929, instead of theft, 18 Pa.C.S. § 3921, and receiving stolen property, 18 Pa.C.S. § 3925; and 2) Whether there was sufficient evidence to convict for third degree felony robbery as defined in 18 Pa.C.S. § 3701(a)(1)(v). For the following reasons, Appellant's conviction for robbery is reversed and the case is remanded to the trial court for resentencing on Appellant's remaining convictions.
The facts in the instant case are undisputed. On February 25, 1982, Appellant entered a supermarket in Philadelphia, walked to the meat counter, picked up a "family-sized" steak and shortly thereafter placed the steak under his jacket. As Appellant proceeded to exit the supermarket with the concealed steak, a plainclothes store security guard, who had witnessed Appellant's activities, approached Appellant and identified himself. The Appellant then threw the steak to the floor and attempted to flee. Before Appellant could escape, he was restrained by the security guard at which time a struggle ensued in which the guard was injured. Appellant was taken into police custody at the supermarket and charged with third degree felony robbery, theft, receiving stolen property and simple assault. On August 12, 1982, Appellant was found guilty on all counts, and following the denial of post-verdict motions was sentenced
[ 343 Pa. Super. Page 245]
to two concurrent terms of probation. This timely appeal ensued.
The first issue raised by Appellant may be disposed of summarily. This Court has held on at least two occasions that a defendant charged with theft by unlawful taking waives the contention that he or she should have been charged with retail theft when the defendant fails to make a pretrial application to quash the information on that basis. Commonwealth v. Boerner, 281 Pa. Super. 505, 422 A.2d 583 (1980); Commonwealth v. Williams, 252 Pa. Super. 587, 384 A.2d 935 (1978). A review of the record reveals that while Appellant did file an omnibus pretrial motion nowhere in that motion did he move to quash the theft and receiving stolen property charges in the information on the grounds that he should have been charged with only retail theft. Thus, this contention is waived.
Appellant's second contention is not as easily disposed. At issue is the interpretation of section 3701(a)(1)(v) of the Pennsylvania Crimes Code, 18 Pa.C.S. § 3701(a)(1)(v), which is a portion of the statute defining the crime of robbery. Section 3701 of the Crimes Code defines robbery as follows: