Golden, In Interest of

• Decision Date: 27 September 1976
• Citation: 365 A.2d 157,243 Pa.Super. 267
• Parties: In the Interest of Lester GOLDEN. Appeal of Lester GOLDEN. In the Interest of Dale HEMMONS. Appeal of Dale HEMMONS.
• Court: Pennsylvania Superior Court

Page 157

365 A.2d 157

243 Pa.Super. 267

In the Interest of Lester GOLDEN.

Appeal of Lester GOLDEN.

In the Interest of Dale HEMMONS.

Appeal of Dale HEMMONS.

Superior Court of Pennsylvania.

Sept. 27, 1976.

Petition for Allowance of Appeal Denied Feb. 14, 1977.

Calvin S. Drayer, Jr., Asst. Public Defender, Norristown, for appellants.

Milton O. Moss, Dist. Atty., William T. Nicholas, First Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Norristown, for appellee.

Before WATKINS, President Judge and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge:

These cases involve appeals to our Court from adjudications of delinquency of both appellants based upon their having committed conspiracy, burglary and criminal mischief. The challenge in each case is only to the finding by the hearing judge that the appellants had committed a burglary, not to the other findings.

In Lansdale, Pennsylvania, two companies, the J. W. Rex Company and the Spraonic Company, occupied different parts of the same building. Their quarters were separated by a fire door secured by a chain lock. On or about 6:00 P.M., November 24, 1974, Timmothy Meyers, the Division Superintendent of the Rex Company, received a call from Floyd Hart, the security guard of the company, advising him that there was a malfunction of equipment of the Rex Company. Mr. Meyers went immediately to the plant and he and the guard went inside the building to seek out the malfunctioning equipment. As they were going down the main hallway which led to the vending machine area, they saw several people who, when they saw Mr. Meyers, ran down the hallway into the Spraonic part of the building. Mr. Meyers and Mr. Hart chased and caught two of them, one being Lester Golden, one of the appellants, and the other being one Joseph Malander. The guard called the Lansdale police who arrived on the scene a few minutes later. An inspection of the premises disclosed that there were opened and partially empty beer bottles standing around, the chain lock had been cut through, the food and cigarette machines had been smashed open and there was an open end wrench inside the cigarette machine.

After being properly advised of his rights, Lester Golden disclosed that he, the appellant Dale Hemmons and Joseph and Dominic Malander had driven in Joseph Malander's car to the yard of the Spraonic Company, had entered Spraonic's part of the building, taking with them three (3) quart bottles of beer. They had cut the chain lock which secured the fire door, with an acetylene torch, and made their way into the Rex Company's part of the building. They had started to drink the beer and they had smashed the vending machine and cigarette machine to get access to the contents of the machines. ¹ The appellants and their companions admitted that they had entered the building, had cut the chain lock and smashed the vending machines as depicted by Mr. Meyers and Mr. Hart and the Lansdale police officers. Appellants claimed that they wanted to find a place to drink beer and wanted to get something to eat.

At the conclusion of the adjudication hearing on December 4, 1974, the hearing judge found the appellants had committed conspiracy, burglary and criminal mischief on November 24, 1974, with respect to the Spraonic Company and the Rex Company Building. ²

As we stated hereinabove, the challenge to the adjudication of delinquency is solely to the finding that the appellants committed burglary. They claim that the crimes they intended to commit, i.e., criminal mischief with damages less than $500.00 and under age drinking of intoxicants, were summary offenses and that such criminal offenses are not contemplated as crimes within the description of the offense of burglary as defined in the Crimes Code. The Crimes Code defines the offense of burglary as follows: 'a person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.' ³

The definition of a crime is embodied in the Crimes Code itself. The Code expressly tells us that: 'An offense defined by this title for which a sentence of death or of Imprisonment is authorized constitutes a crime.' ⁴ (Emphasis added.) The Crimes Code further tells us that: 'A person who has been convicted of a summary offense may be sentenced To imprisonment for a term which shall be fixed by the court at not more than 90 days.' ⁵ (Emphasis added.) Thus it clearly appears that imprisonment is authorized for a summary offense and the commission of a summary offense constitutes a crime under our Crimes Code.

The Minority of our Court would have us interpret the Crimes Code in such a way that the word 'crime' does not encompass summary offenses. To so interpret the Statute would mean that persons could break into one's home or building, vandalize it to the extent of $500.00, leave it and if apprehended could be charged only with a summary offense. The Minority claims that such an interpretation would further the purposes of the Crimes Code. Such an interpretation would make it easy for persons to break into buildings and do substantial damage inside of them. We believe that the Legislature never intended such a result in drafting its definition of burglary and that such an interpretation would not be furthering the purposes of the Crimes Code. ⁶

The Minority of the Court further implies that the only Summary offense committed by the juveniles in these cases was drinking intoxicants while under the age of 21 years. Such is far from the case. Serious criminal mischief ⁷ was perpetrated in this building by the appellants in addition to the under age drinking. It is important that we deal with the full facts of a case in rendering our decisions.

The Minority of our Court stresses the fact that summary offenses are not listed under the classes of crime as set forth in § 106(b) of the Crimes Code. Section 106 lists all classes of criminal offenses. Summary offenses are listed as one of the classes of these offenses. When used in their general sense, crimes are no different from criminal offenses. We have held that the word crime includes summary proceedings. In Commonwealth v. Shields, 50 Pa.Super. 194 (1912), where the sheriff as keeper of the jail was being prosecuted for allowing an inmate who was confined upon a sentence for a summary conviction to escape, the Statute under which he was charged provided that any sheriff or keeper of any jail 'having any offender convicted or accused of any crime in his lawful custody for such crime, shall voluntarily permit or suffer such offender to escape and go at large,' the officer so offending shall be guilty of a misdemeanor. The persons permitted to escape had been convicted after a hearing before a justice of the peace and were sentenced to pay a fine of $5.00 Or undergo imprisonment and in default of payment had been committed to the county jail for five days. In that case, we held Inter alia: '. . . it involves no wider latitude of construction and no undue expansion of the word 'crime' beyond its recognized meaning to hold, as we do, that, as used in sec. 5 of the act of 1860, it includes not only indictable offenses, offenses at common law which are malum in se, or of a deep and atrocious dye, and offenses to which the appellation 'crime' is specifically attached by statute, but also new offenses created by statute to which a penalty by fine or by fine and alternative imprisonment is attached and for which the offender may be summarily convicted before a justice of the peace in a proceeding in the name of the Commonwealth. . . .' p. 204.

The hearing judge properly found in his adjudication that appellants committed a burglary and the adjudication is affirmed.

HOFFMAN, J. files a concurring opinion.

CERCONE, J., concurs in the result.

JACOBS, J., files a dissenting opinion in which SPAETH, J., joins.

HOFFMAN, Judge (concurring):

Because I believe a complete examination of the statutory history of the Crimes Code ¹ mandates the conclusion that a summary offense is a crime, I concur. While I am sympathetic to the result reached by the Dissenting Opinion, I recognize that the classification of crimes is a matter for the legislature.

Our role in construing statutory provisions is well-established: 'A court may not alter, under the guise of 'construction', the express language and intent of the Legislature. See e.g., Commonwealth v. Rieck Investment Corp., 419 Pa. 52, 213 A.2d 277 (1965); Calvert Distillers Corp. v. Board of Finance & Revenue, 376 Pa. 476, 103 A.2d 668 (1954); Commonwealth v. One 1939 Cadillac Sedan, 158 Pa.Super. 392, 45 A.2d 406 (1946). While it is true that penal statutes must be strictly construed, 1 Pa. S. § 1928(b)(1) (Special Pamphlet 1973), the principle of strict construction does not permit a court to delete a clear and specific crime from the criminal code. A statute must be construed, if possible, to give effect to all its provisions, making the entire statute effective and certain. Id. §§ 1921(a), 1922(2); see Lynch v. Owen J. Roberts School District, 430 Pa. 461, 244 A.2d 1 (1968); Whitemarsh Township Authority v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964); Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955).' Commonwealth v. Pope, 455 Pa. 384, 388--89, 317 A.2d 887, 889 (1974).

To best determine the legislative intent regarding summary offenses, a comparison should be drawn between the Crimes Code as originally proposed and as enacted. An examination of the Proposed Crimes Code for Pennsylvania ² demonstrates that, as originally drafted, a summary offense was not a crime: 'Section 1.07. Classes of Crime. (a) An offense defined by this code for which a sentence of death or imprisonment is authorized constitutes a crime. The...