Commonwealth v. Holzlein

POPOVICH, Judge,

concurring and dissenting.

On appeal, the appellant challenges the judgment of sentence (6 months to 3 years imprisonment, to be followed by a 2-year period of probation) on grounds the trial court abused its discretion in transferring his case to criminal court, the verdict was against the weight of the evidence and the sentence was illegal. I join with the Majority in finding the first two claims meritless. However, I dissent to that portion of the ruling holding the sentence legal.

The facts indicate that in August of 1994, the appellant and Randy Zak1 entered the home of a neighbor (Mr.. Story) and stole eight weapons while Story was absent from the premises. The appellant removed the weapons to a wooded area near his home. Two weeks after the theft, while the appellant and others were target shooting near the appellant’s home, Zak shot himself accidently with one of the weapons. Prior to transporting Zak to the hospital, the appellant, one Alexander Gil and Zak agreed to fabricate a story that the shooting was committed by an unknown assailant, and Zak was found on the side of the road by Gil and the appellant before taken for treatment. This false report was communicated to police.

Two years after the theft, the police recovered one of the weapons used in a crime in Middletown, New York. The same week as the Middletown incident, the police were notified of two weapons turned in by a citizen to a local gun shop, both of which matched the identification numbers of the stolen weapons. Because the weapons were turned in near Story’s home and the police knew *853that Zak had lived with Story for a time prior to the theft and the shooting, the police spoke with Zak. He confessed to the theft and implicated Holzlein. A second interview of Zak revealed the falsity of the reported anonymous shooter.

Thereafter, appellant being under the age of eighteen at the time of the incidents, a juvenile petition was filed. A complaint issued consisting of eight counts of .theft of weapons; two counts of criminal conspiracy; and one count each of receiving stolen property, hindering apprehension or prosecution, tampering with or fabricating physical evidence and false reports to law enforcement authorities. Once the Commonwealth’s petition to have the case transferred to criminal court was granted, a jury trial ensued in which the appellant was found not guilty of the first nine counts of the information but guilty of the other charges. After sentencing,2 the appellant filed a direct appeal to this Court raising three issues. I find merit in the sentencing claim only.

The appellant contends that his sentences for criminal conspiracy and receiving stolen property were illegal because each was graded a felony of the third-degree instead of first-degree misdemeanors.3 Because the illegality of a sentence is a nonwaivable issue subject to sua sponte review by this Court, see Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281, 1289 n. 11 (1988), we may review the propriety of the sentence by examining, first, the gradation of the receiving stolen property charge.

Under Pennsylvania law, gradation of theft offenses is based upon the value of the stolen property. 18 Pa.C.S.A § 3903. The burden to establish the value of stolen property is upon the Commonwealth. Commonwealth v. Stauffer, 239 Pa.Super. 463, 361 A.2d 383, 384 (1976). “Value” for the purposes of gradation of theft offenses must be ascertained with reference to the applicable provisions of 18 Pa.C.S.A § 3903, which read in relevant part:

(a.l) Felony of the third degree. — Except as provided in subsection (a), theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.
(b) Other grades. — Theft not within subsection (a) or (a.l) of this section, constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by threat, or in breach of fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200 the offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than $50 the offense constitutes a misdemeanor of the third degree.
(c) Valuation. — The amount involved in a theft shall be ascertained as follows:
(1) Except as otherwise specified in this section, value means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.
* ‡ * ‡ *
*854(3) When the value of property cannot be satisfactorily ascertained pursuant to the standards set forth in paragraph ■] (1) of this subsection its value shall be deemed to be an amount less than $50. ,

As amended, November 29, 1990, P.L. 608, No. 154, § 1,18 Pa.C.S.A. 3903.

In Commonwealth v. Dodge, 410 Pa.Super. 189, 599 A.2d 668 (1991), the defendant claimed, inter alia, the trial court imposed an illegal sentence of three and one-half to seven years imprisonment for the crime of receiving stolen property, a felony of the third-degree. We agreed and remanded for resen-tencing. In doing so, we wrote:

The lower court, in its 1925 opinion, states that the Commonwealth provided overwhelming evidence to show that appellant was “in the business of buying or selling stolen property” within the meaning of 18 Pa.C.S.A. § 3903(a). In Commonwealth v. Sparks, 342 Pa.Super. 202, 492 A.2d 720 (1985), our Court held that the issue of whether the defendant was “in the business of buying or selling stolen property” was a question for the jury rather than a question for the court at sentencing.
In the present case, the lower court did not submit this issue to the jury although testimony was presented on this issue. At sentencing, the lower court graded the offense as a felony of the third degree since the rifle was a firearm under the statute. Since we have determined that the definition of a firearm under the Uniform Firearms Act applies to grading [of] theft offenses, the lower court’s conclusion cannot be upheld. The question of whether appellant was in the business of buying or selling was not a question that should have been addressed at the time of sentencing. Although the Commonwealth alleged a value of the rifles in the information, there was no evidence offered at trial as to the value of the rifles and the value issue was not submitted to the jury. Such evidence is part of the Commonwealth’s burden of proof. Commonwealth v. Hanes, 361 Pa.Super. 357, 366-67, 522 A.2d 622, 625 (1987). In the absence of such proof, we are compelled to presume that [the] value of the rifles is less than $50. Commonwealth v. Walentoski 300 Pa.Super. 559, 565 n. 2, 446 A.2d 1300, 1303 n. 2 (1982). Thus-, § 3903 requires that [the defendant’s] offense be graded as a thirddegree misdemeanor.

410 Pa.Super. at 197, 599 A.2d at 672 (Emphasis added).

At bar, albeit the Criminal Information filed against the appellant at Counts I-VIII listed values for each of the eight stolen weapons,4

In instructing the jury on [Count XI — ]the crime of Receiving Stolen Property,; [the trial court] read Pennsylvania Suggested Standard Criminal Jury Instruction 15.3925A. Paragraph number six of that instruction reads, as follows:
If you find the defendant guilty of theft by receiving stolen property, you should then go on to consider whether the defendant was in the business of buying or selling stolen property. If you are satisfied beyond a reasonable doubt that he was in the business, your verdict should say so.
Believing that the Commonwealth had not presented any evidence to show the defendant was in the business of buying or selling stolen property, [the trial court] did not read paragraph six of that instruction to the jury. Consequently, the jury did not address that issue.

Trial Court Opinion, 12/16/96 at 9 (Emphasis added).

As in Dodge, the trial court here failed to submit the issue of whether the appellant was “in the business of buying or selling stolen property” to the jury. Additionally, no evidence was offered at trial regarding the value or barrel length of the weapons, nor was the value issue submitted to the jury. Rather, the court waited until sentenc*855ing to grade the offenses felonies of the third-degree because the stolen weapons were “firearms” under the statute. This was error. Id.

The Majority ignores the requirement that penal statutes be strictly construed to give effect to each provision and not be read so that a clause, sentence or word is rendered superfluous, void or insignificant. P.L.E. Criminal Law § 6. Applying such a precept here, the disjunctive nature of the provisions of Section 3903(a.l) permit a conviction provided one of the elements set forth therein has been proven. Sub judice, the record discloses none of the elements (as to “value,” “barrel length,” or that Holzlein was “in the business of buying or selling” firearms) was established.

To explicate, 1) the prosecution failed to prove the stolen items exceeded $2,000 in value. See note 4, supra; 2) the Commonwealth did not introduce evidence of the “barrel length” of any of the stolen firearms, which is a condition precedent to proving one guilty of a crime involving a “firearm”. Dodge, supra; and 3) the trial court admitted it withheld from the jury the question of whether the accused was “in the business of buying or selling stolen property.” See Trial Court Opinion, 12/16/96 at 9.

Accordingly, reading the facts against the backdrop of the applicable law (e.g., Dodge, supra),- the imposition of the sentence for a felony of the third degree under Section 3903(a.l) is unjustified by the absence of any evidence reflective of the “value,” “barrel length” or involvement “in the business of buying or selling stolen” firearms by the appellant. The Majority’s holding to the contrary prompts my dissent.5

. Randy Zak testified against the appellant and pleaded guilty to various offenses arising out of the same incidents charged against the appellant.

. The sentence consisted of the following:

Count 10 — Criminal Conspiracy: Pay the cost of court proceedings, $500 fine, and incarceration for a period not less than six months nor more than three years.
Count 11 — Receiving Stolen Property: Pay the cost of court proceedings, $500 fine, and incarceration for a period not less than six months nor more than three years to run concurrently to Count 10.
Counts 12, 13, and 14 — Hindering Apprehension, Tampering with Evidence, and False Reports: Pay the cost of court proceedings and probation for two years, each to be served concurrently, one with the other, but consecutively to Counts 10 and 11., Restitution in the amount of $3,000.
Record Nos. 4 and 15.

. In the case of a felony of the third-degree, a person may be sentenced to imprisonment for not more than seven years. 18 Pa.C.S.A. § 1103(3) (Supp.1997). In contrast, a person convicted of a misdemeanor of the first-degree may receive a sentence of imprisonment of not more than five years, whereas a third-degree misdemeanor carries a potential sentence of not more than one year imprisonment. 18 Pa.C.S.A. § 1104(1), (3).

. The jury returned not guilty verdicts on these counts' RecordNo.il.

Further, the only mention of the weapons at trial consists of Trooper Thomas Kobeski's testimony identifying, without reference to value, all eight of the weapons stolen from Story's residence by Zak and the appellant. N.T. 205. No other official record sent to this Court indicates otherwise.

. I would vacate the judgment of sentence and remand to allow the criminal conspiracy and receiving stolen property convictions to be graded third degree misdemeanors and allow the court to impose a legal sentence commensurate with its sentencing scheme. Trial Court Opinion, 12/16/96 at 9-10; Commonwealth v. Slick, 432 Pa.Super. 563, 639 A.2d 482 (1994).

It is settled law that criminal conspiracy is graded no higher than the crime with which one is convicted of conspiring to commit. 18 Pa. C.S.A. § 905(a). Thus, criminal conspiracy in this case should be graded a third degree misdemeanor and not a felony of the third degree with the absence of the jury’s determination that the appellant was "in the business of buying and selling stolen property," as well as the fact that the issues of value and barrel length were not presented to the jury. Commonwealth v. Dodge, 410 Pa.Super. 189, 599 A.2d 668 (1991).

Albeit the appellant framed the sentencing issue to regrade the charges as misdemeanors of the first degree and not misdemeanors of the third degree, this Court’s authority to rectify an illegal sentence exceeds the principles of waiver and allows for a sua sponte review of the punishment imposed. Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281, 1289 n. 11 (1983). The record and applicable law justify vacating the judgment of sentence and remanding the case to remedy an injustice. Dodge, supra.