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filed: June 14, 1988.


Appeal from the Judgment of Sentence of the Court of Common Pleas, Cumberland County, Criminal Division, at No. 87 Criminal, 1986.


Charles A. Rector, LeMoyne, for appellant.

M.L. Ebert, Jr., Assistant District Attorney, Carlisle, for Com., appellee.

Brosky, Montemuro and Johnson, JJ. Montemuro and Johnson, JJ., concur in the result.

Author: Brosky

[ 375 Pa. Super. Page 148]

This is an appeal from the judgment of sentence entered against appellant after his non-jury trial for criminal mischief.

Appellant challenges the sufficiency of the evidence to support his conviction for criminal mischief. For reasons appearing infra, we vacate the judgment of sentence and discharge appellant.

Appellant was arrested and charged with criminal mischief as a result of his admitted action in cutting a hole in a fifteen-inch storm drain pipe installed by the Borough of Wormleysburg, Cumberland County, on an easement adjacent to his property. While appellant admits to the act of

[ 375 Pa. Super. Page 149]

    cutting and, as a result thereof, damaging the drain pipe which belonged to the Borough, the crux of his representation is that "his conduct occurred without the presence of criminal intent to endanger property as is required by [18] Pa.C.S.A. [§ ] 3304(a) 2 [sic]." Appellant's Brief, p. 6. For appellant, this lack of criminal intent, which forms the basis of his argument to this Court, translates into the Commonwealth's failure to prove the malice element of this offense.

The concept of legal malice imports the absence of any justification, excuse or recognized mitigation of circumstances, an actual intent to cause the resulting harm or the willful commission of an act with the awareness of a strong likelihood that harm may result. See Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973). However, in the absence of malice as an express element of an offense, the Commonwealth must, instead, prove that an actor acted intentionally, knowingly, or recklessly. Commonwealth v. Moore, 261 Pa. Super. 92, 395 A.2d 1328 (1978). The section of the Crimes Code under which appellant is charged, 18 Pa.C.S.A. § 3304(a)(2),*fn1 requires, as an element of its perpetration, intent or recklessness. Thus, malice is now embraced within the elements of intent, knowledge and recklessness. See Official Comment to § 302 of the Crimes Code, 18 Pa.C.S.A. § 302, defining the various requirements of culpability. The Comment goes on to state that words like "malice" have no settled meaning, and, consequently, the design of present Section 302 is to eliminate the obscurity of that term. Accordingly, if the Commonwealth's level of proof had risen sufficiently to establish beyond a reasonable doubt the element of either intent or recklessness necessary to demonstrate that appellant caused the harm

[ 375 Pa. Super. Page 150]

    which the statute intended to prevent, it would have also proven that appellant acted with malice.

Appellant acknowledges that his act of cutting the pipe was intentional. He denies, however, that he was motivated by malice, i.e., an evil motive, to endanger property. Rather, he claims that this act was necessary to protect his property from flooding. The flooding caused damage to the understructure of appellant's property, and his method of "self-help" actually alleviated the problem because it facilitated surface drainage of water from his property. We believe appellant's reasoning here to be that his conduct did not rise to the level of harm which the criminal mischief statute was designed to prevent.

The section of the criminal mischief statute with which appellant was charged reads as follows:

§ 3304. Criminal mischief

(a) Offense defined. -- A person is guilty of criminal mischief if he:

(2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property . . . .

In this regard, appellant's intent when he broke the drain pipe, as he perceives it, was to protect his property, not to endanger the property of another. However, we must still contend with the facts that (a) appellant admitted his intent to break the pipe; and (b) the pipe belonged to the Borough, rather than to appellant.

The applicable section of the statute requires an intent to endanger property. As we stated earlier, appellant readily acknowledges that he broke the pipe. He even reported this misdeed to the appropriate Borough officials. But he disavows any criminal i.e., malicious motive in doing so. It is true that if an actor declares his intent, this establishes the requisite frame of mind ...

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