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RAMON RODRIQUEZ. APPEAL RAMON RODRIQUEZ (02/17/88)

filed: February 17, 1988.

IN THE INTEREST OF RAMON RODRIQUEZ. APPEAL OF RAMON RODRIQUEZ


Appeal from the Judgment entered January 6, 1986, Court of Common Pleas, Philadelphia County, Criminal Division at No. 7930-84-10.

COUNSEL

Peter Rosalsky, Assistant Public Defender, for appellant.

JoAnn Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, McEwen, Olszewski, Montemuro, Popovich and Johnson, JJ.

Author: Johnson

[ 371 Pa. Super. Page 132]

Following a hearing appellant was adjudicated delinquent based on charges of criminal mischief and criminal conspiracy. The charges were based on appellant's participation in the spray-painting of graffiti on the wall of a building. Appellant was placed on probation on the conditions that he attend school, remove the graffiti under the supervision of an anti-graffiti program, speak at meetings on behalf of the program and perform 100 hours of "scrub time" with the program. The order of adjudication of delinquency and commitment was reduced to judgment. From that judgment appellant appeals to this court raising one issue:

WAS NOT THE EVIDENCE, WHICH ESTABLISHED THAT APPELLANT SPRAY-PAINTED GRAFFITI ON THE OUTSIDE WALL OF A BUILDING, INSUFFICIENT TO SUSTAIN THE ADJUDICATION FOR CRIMINAL MISCHIEF AND CONSPIRACY TO COMMIT CRIMINAL MISCHIEF INASMUCH AS SUCH EVIDENCE DID NOT ESTABLISH THAT APPELLANT TAMPERED WITH "TANGIBLE PROPERTY" AS REQUIRED BY THE STATUTE?

Finding no merit to the argument we affirm.

The thrust of appellant's argument is that the statutory provision defining criminal mischief proscribes tampering with the tangible property of another. Appellant argues, based on Commonwealth v. Lezinsky, 264 Pa. Super. 476, 400 A.2d 184 (1979) and Commonwealth v. Williams, 299 Pa. Super. 278, 445 A.2d 753 (1982) that tangible property is limited to personal property and does not include real property. He contends that the wall of a building does not qualify as tangible property. We find tangible property, as that phrase is used in the criminal mischief statute, includes both real and personal property. To the extent that Lezinsky

[ 371 Pa. Super. Page 133]

    and Williams find to the contrary, they are expressly overruled.

Criminal mischief is defined at 18 Pa.C.S. § 3304 as follows:

§ 3304. Criminal Mischief

(a) Offense Defined. -- A person is guilty of criminal ...


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