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COMMONWEALTH PENNSYLVANIA v. BYRON HARVIN (05/13/85)

submitted: May 13, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
BYRON HARVIN, A/K/A WILLIE HARVIN, A/K/A TIM HARVIN, A/K/A WILLIE BROWN, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC8401114A.

COUNSEL

Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Spaeth, President Judge, and Rowley and Wieand, JJ. Wieand, J., files a concurring opinion.

Author: Rowley

[ 346 Pa. Super. Page 577]

Opinion OF THE COURT

This is a direct appeal from the judgment of sentence imposed on appellant following his conviction for retail theft. He contends that his offense was improperly graded as a third degree felony. We disagree and affirm.

[ 346 Pa. Super. Page 578]

On January 20, 1984, appellant was arrested and charged with retail theft. The criminal complaint filed by the Pittsburgh Police specifically charged, inter alia, that:

     said actor having been convicted of retail theft twice before, 4/13/76 MAG. GIVENS 1YR. PROBATION, 2/10/83 MAG. LITTLE 30 DAYS. in violation of Section 3929(a)(1) & (b)(1)(iv) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 of Pa.C.S. ยง 3929 (a)(1) & (b)(1)(iv).

Section 3929 (b)(1)(iv) of the Crimes Code provides that:

Retail theft constitutes a [f]elony of the third degree when the offense is a third or subsequent offense, regardless of the value of the merchandise. (Emphasis added.)

A preliminary hearing was held on January 30, 1984, which resulted in appellant being bound over for trial. The docket transcript, as returned by the district justice, notes that appellant was charged with "Retail Theft" under Section "CC3929 (biv) [sic]". In the space provided on the transcript form to show the grade of the offense charged the abbreviation "M2" is inserted. In the ...


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