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Commonwealth v. Emanuel

Superior Court of Pennsylvania

February 26, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
FREDERICK EMANUEL, Appellant

Submitted: January 6, 2014.

Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0008854-2011. Before COLEMAN, J.

Earl D. Raynor, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J.[*] Fitzgerald, Justice recused.

OPINION

Page 893

BENDER, P.J.

Appellant, Frederick Emanuel, appeals from the judgment of sentence of six to twenty-three months' house arrest, followed by two years' probation, imposed after he was convicted of theft by unlawful taking of movable property, 18 Pa.C.S. § 3921(a), based on his unauthorized removal of radiators and copper tubing from a vacant house. Appellant contends that the court erred by denying his post-conviction motion for judgment of acquittal, where the items taken by Appellant were not " movable property" as that term is used in section 3921(a). After careful review, we affirm.

The trial court set forth the facts of Appellant's case as follows:

On the morning of June 18th, 2011, Police Officer Sanchious was called to 4631 Locust Street by a neighbor living in a nearby property. When the officer arrived, she encountered [Appellant] standing outside of the property. ... [A] brief conversation [ensued] in which [Appellant] informed [the officer] that two other men with whom he was working[] were located inside the house. The officer instructed ... him to call them outside, which he did, and then [proceeded] to question all three men as to who had authorized them to be inside the property. After none of the men were able to offer proof that they were authorized to work within and remove the metal scraps from the house, they were detained.
At trial, [Appellant] testified that he hired Nicholas Rulli to detach and remove copper tubing used for plumbing, as well as affixed wall radiators, which [Appellant] intended to sell for scrap. [Appellant] also stated that he hired Mark Lee to assist with the removal of trash from the house. Both men testified that [Appellant] was their boss. All three men claim[ed] that [Appellant] was in turn hired by a fourth man, Louis Coles, to perform this job. At trial, [Appellant] claimed that Mr. Coles had instructed them to clean a house and [they] were entitled to the metal scrap within the house as compensation. Mr. Coles did not testify at trial. [Appellant] admitted that he had not received permission directly from the property owner, but had done so in previous jobs.
[Appellant] did not contest that he and the other men had removed the metal scraps from the house and did so

Page 894

with the intention to sell it as compensation for cleaning out the property located at 4631 Locust Street. After deliberation, the jury found [Appellant] ...


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