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COMMONWEALTH PENNSYLVANIA v. GEORGE MICHAEL PEMBERTH (03/01/85)

filed: March 1, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE MICHAEL PEMBERTH, APPELLANT



No. 330 Philadelphia 1984, Appeal from the Judgment of Sentence February 1, 1984 in the Court of Common Pleas of Northampton County, Criminal No. 1169-1982.

COUNSEL

Richard J. Jacobs, Bethlehem, for appellant.

James M. Connell, Assistant District Attorney, Bethlehem, for Commonwealth, appellee.

Spaeth, President Judge, and Olszewski and Cercone, JJ. Spaeth, President Judge, concurs in the result.

Author: Olszewski

[ 339 Pa. Super. Page 429]

Appellant challenges his conviction under 18 Pa.C.S. Sec. 3928, Unauthorized Use of a Motor Vehicle.

We are asked to decide whether a defendant charged only with theft by unlawful taking or disposition, 18 Pa.C.S. Sec. 3921, and receiving stolen property, 18 Pa.C.S. Sec. 3925, can be validly convicted for unauthorized use of a motor vehicle, 18 Pa.C.S. Sec. 3928.

It is well-settled that upon indictment for a particular crime, a defendant may be convicted of a lesser offense included within that crime. Commonwealth v. Soudani, 398 Pa. 546, 159 A.2d 687, cert. denied 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960). The test for whether a given offense is lesser than and included in another asks whether the greater offense "necessarily involves" the lesser. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941).

The proper subsidiary test for determining whether one offense necessarily involves another, is whether all of the essential elements of the lesser offense are included in the greater. Stated another way, if the essential elements of crime A are also elements of crime B, and if crime A is less culpatory than crime B, then crime A is a lesser-included offense of crime B.

[ 339 Pa. Super. Page 430]

    in which the allegations made in the indictment, while sufficient for conviction of larceny, would not sustain a conviction for "joy-riding." A person could push a car, tow the car or receive possession of a previously stolen car, and then exercise control over that car. Because the crime of theft by unlawful taking does not necessarily involve all the essential elements of unauthorized use, we conclude that Sec. 3928 is not a lesser-included offense to Sec. 3921.

Our decision today calls into question the continuing validity of Commonwealth v. Nace, 222 Pa. Super. 329, 295 A.2d 87 (1972). The Court there stated that the operation of a motor vehicle without the knowledge or consent of the owner was a lesser-included offense to larceny of a motor vehicle. Although the statement was dicta,*fn1 it has been widely cited as law. For that reason we explain why Nace does not control our decision here.

Nace deals with the old "joy-riding" statute, 75 P.S. Sec. 624(5), which made it a crime to "use" as well as to operate another's motor vehicle without his or her consent. At the time Nace was decided, larceny by motor vehicle was a common law crime. Both the "joy-riding" statute and the common law larceny have been replaced under the Crimes Code by Sec. 3928 and Sec. 3921, respectively. Definition of the offenses under current law is stricter than it was under the antecedent law. As stated above, an actor could conceivably "exercise control" over a vehicle without actually operating it. The distinction is more than metaphysical. Penal statutes by law are to be ...


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