Commonwealth v. Carter

12 Citing cases

  1. Com. v. Carter

    482 Pa. 274 (Pa. 1978)   Cited 32 times
    Holding that parallel language in 18 Pa.C.S. § 3503, defining crime of criminal trespass, includes an element of scienter

    Appellant Robert Dulaney was indicted for burglary, theft by unlawful taking or disposition, theft by receiving stolen property and criminal conspiracy.Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975) (plurality opinion, Watkins, P. J., concurred in the result; Hoffman, J., filed a dissenting opinion in which Jacobs and Spaeth, JJ., joined). Commonwealth v. Bozarth, 237 Pa. Super. 702, 352 A.2d 65 (1975) (Jacobs, Hoffman and Spaeth, JJ., dissenting).

  2. Com. v. Jacobs

    247 Pa. Super. 373 (Pa. Super. Ct. 1977)   Cited 30 times
    Discussing prior case law holding that "a jury could reasonably infer an intent to commit larceny when a defendant was caught in the act of breaking into an apartment" and noting that this "appears to be in accordance with the view of a majority of jurisdictions which have decided that an unexplained breaking and entering into a building is in itself sufficient to sustain a conviction for burglary with the intent to commit larceny" because, in the absence of evidence of other intent or explanation for breaking and entering, "the usual object or purpose . . . is theft"

    However, while the evidence is insufficient to support a finding of guilt on the burglary charge, it was sufficient to support a verdict of guilty for criminal trespass. In Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975), we held that the crime of burglary, for which the appellant was indicted and tried, includes the lesser offense of criminal trespass. It is therefore on the strength of Carter that judgment of sentence on indictment number 244 charging the appellant with burglary is reversed, the verdict of guilty vacated and the case remanded with directions to enter a verdict of guilty of criminal trespass and impose sentence thereon. See Commonwealth v. Lynch, 227 Pa. Super. 316, 323 A.2d 808 (1974); Commonwealth v. Freeman, 225 Pa. Super. 396, 313 A.2d 770 (1973).

  3. Interest of Golden

    243 Pa. Super. 267 (Pa. Super. Ct. 1977)   Cited 11 times

    Crimes Code, 18 Pa.C.S.A. § 3903(b)(2) (1973). See alsoCommonwealth v. Carter, 236 Pa. Super. 376, 384 n. 3, 344 A.2d 899, 900 (1975) (dissenting opinion by HOFFMAN, J.). Similarly, it is difficult to justify the legislative decision to make one who steals property of another valued at less than $50.00 guilty of a third degree misdemeanor while at the same time making one who causes loss to another by criminal mischief in the amount of less than $500.00 guilty of only a summary offense.

  4. People v. Demapan

    2004 WL 2958697 (Guam 2004)   Cited 16 times

    Thus, criminal trespass is not a lesser included offense of burglary. See Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660, 661 (Pa. 1978) (adopting a dissenting opinion stating that "the crime of criminal trespass has a scienter requirement not necessary to prove the crime of burglary, and thus cannot be categorized as a lesser included offense.") (quoting Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899, 903 (Pa. Super. Ct. 1975)); see also State v. Ocheltree, 170 W. Va. 68, 289 S.E.2d 742, 745 (W.Va. 1982) ("In this jurisdiction, as in Pennsylvania, 'the crime of criminal trespass has a scienter requirement not necessary to prove the crime of burglary, and thus cannot be categorized as a lesser included offense.'") (quoting Carter, 393 A.2d at 661)).

  5. Com. v. Miller

    279 Pa. Super. 254 (Pa. Super. Ct. 1980)   Cited 1 times

    1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973, 18 Pa.C.S.A. § 3502. As we said in Commonwealth v. Carter, 236 Pa. Super. 376, at 378, 344 A.2d 899 at 900 (1975), reversed on other grounds, 482 Pa. 274, 393 A.2d 660 (1978): The language of the "Crimes Code" regarding burglary comes from the "Model Penal Code", section 221.1.

  6. People v. Palmer

    83 Ill. App. 3d 732 (Ill. App. Ct. 1980)   Cited 18 times   1 Legal Analyses
    Construing a burglary statute that requires proof of "intent to commit therein a felony or theft"

    The court called this an attempted rather than a completed burglary. In Commonwealth v. Carter (1975), 236 Pa. Super. 376, 344 A.2d 899, rev'd on other grounds (1978), 482 Pa. 274, 393 A.2d 660, and State v. Crow (Tenn. 1974), 517 S.W.2d 753, glass in or next to doors had been broken. In both cases, the courts reached the conclusion that the defendants' hands had intruded through the holes to reach the locks.

  7. Com. v. Rhodes

    272 Pa. Super. 546 (Pa. Super. Ct. 1979)   Cited 27 times

    It has been held that "entry" is accomplished in the event that any part of the intruder's body enters the structure. See Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975); Commonwealth v. Myers, 223 Pa. Super. 75, 297 A.2d 151 (1972). Because we find that the evidence was sufficient to establish the crime of burglary on the indictment at No. 1313 C.D. 1973, we cannot find that trial counsel was ineffective for failing to object to the court's charge to the jury with respect to the elements of burglary, and for failing to raise the same argument on direct appeal.

  8. Commonwealth v. Farmer

    368 A.2d 748 (Pa. Super. Ct. 1976)   Cited 16 times
    In Commonwealth v. Darby, 244 Pa. Super. 334, 368 A.2d 748 (1976), this court held that a delay of eight months between a guilty plea and the Gagnon II probation revocation hearing was unlawful where the defendant had been incarcerated solely on the basis of the Gagnon I hearing.

    In essence, its argument is that the theft of an automobile necessarily involves the theft of its contents and further that the appellant was not unfairly surprised when convicted of the attempted theft of the car's contents. It is well-settled that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it. Commonwealth v. McLaren, 441 Pa. 522, 271 A.2d 281 (1970); 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); Commonwealth v. Ackerman, 239 Pa. Super. 187, 361 A.2d 746 (Price, J., filed 3/29/76); Commonwealth v. Wilds, 240 Pa. Super. 278, 362 A.2d 273 (Hoffman, J., filed 3/29/76); Commonwealth v. Melnyczenko, 238 Pa. Super. 203, 358 A.2d 98 (1976); Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975); Commonwealth v. White, 232 Pa. Super. 176, 335 A.2d 436 (1975); Commonwealth v. Nace, 222 Pa. Super. 329, 295 A.2d 87 (1972). The essential inquiry thus becomes whether the greater offense of attempted theft of an automobile, a felony of the third degree, "necessarily involves," the lesser offense of theft of the contents of the automobile, a misdemeanor of the third degree in this case.

  9. Com. v. Sylvanus

    369 A.2d 826 (Pa. Super. Ct. 1976)   Cited 7 times

    The other two crimes charged were theft by unlawful taking and theft by receiving stolen goods, to both of which charges adjudications of not guilty were made. Appellant first raises a Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975, allocatur granted), claim that criminal trespass is not a lesser included offense of the charge of burglary. In this way appellant is attempting to attack the propriety of the conviction.

  10. Commonwealth v. Ackerman

    239 Pa. Super. 187 (Pa. Super. Ct. 1976)   Cited 17 times
    Holding that "unlawful restraint cannot be said to be necessarily included within the crime of kidnapping"

    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. Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975); Commonwealth v. Nace, 222 Pa. Super. 329, 295 A.2d 87 (1972). 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.