Theft by Unlawful Taking of Movable Property • Definition of “Movable Property”

Commonwealth v. Emanuel, PICS Case No. 14-0491 (Pa. Super. Feb. 26, 2014) Bender, J. (7 pages).

Where a fixture of real property could be detached and relocated from the property, it was considered to be “movable property” as defined in the statute outlawing theft by unlawful taking of movable property. Affirmed.

Appellant Frederick Emanuel appealed from the judgment of sentence after his conviction for theft by unlawful taking of movable property, which stemmed from his arrest after being discovered removing radiators and other copper tubing from a house that appellant could not prove being authorized to work in.

After conviction, appellant filed a post-conviction motion, arguing that the conviction could not stand since the items taken were not “movable property.” The trial court denied the motion, and this appeal followed.

On appeal, appellant reiterated the same argument in his post-conviction motion. In support of his argument, appellant cited Commonwealth v. Foster, in which the court overturned a conviction for theft from a motor vehicle stemming from the theft of a front grill affixed to a motor vehicle, analogizing the grill to a fixture of real property and finding that a part affixed to a motor vehicle was not movable property but was part-and-parcel of the motor vehicle; the court held that theft of the grill was more theft of a motor vehicle, rather than theft from a motor vehicle, and that the statute was intended to criminalize theft of movable objects other than the motor vehicle itself.

The court rejected appellant’s argument, finding that Foster was distinguishable in that a part of a motor vehicle could not be distinguished from the vehicle itself for the purposes of movable property, since the vehicle itself was movable; conversely, a house was immovable property, while fixtures from a house could be detached and turned into movable property while the house remained immovable.

The court held that the legislature intended to criminalize the theft of the types of objects stolen by appellant as “movable property,” and accordingly affirmed appellant’s sentence.