Commonwealth v. McKennion

Opinion by Price, J., Appellant, Lawrence P. McKennion, was tried on May 6, 1974, before a judge sitting without a jury, and con — 162 — victed of theft by unlawful taking or disposition.1 The testimony revealed that on November 5, 1978, at approximately 6:00 a.m., appellant was observed removing a typewriter from the Labor and Industry Building in Harrisburg, and placing it into his state car. On November 8, 1973, appellant was again seen as he removed a calculator from the Labor and Industry Building and placed it into his own car. On this occasion, appellant was followed by the State Police, who watched appellant take the calculator from the back seat of his car and put it into the trunk. With this information, the State Police obtained a search warrant for the car and served it upon appellant at the State Police Barracks at 21st and Herr Streets. When they opened the trunk, the officers saw two stolen office machines, a typewriter and a calculator. Appellant was subsequently advised of his Miranda rights and questioned. He admitted the theft of the two machines and stated that he had taken approximately twenty others. All of the machines had been sold to Alderman Irvin Harrison, who paid appellant $25 to $50 for each item. Appellant further indicated that he had taken all of the machines to the back office of Alderman Harrison, and that he believed several were still there. The State Police then obtained a search warrant for Alderman Harrison’s office at 1246 Market Street. The search uncovered nine additional stolen machines. Appellant was charged with theft by unlawful taking or disposition of the eleven machines in two separate indictments, which were consolidated for trial. Appellant was found guilty on both indictments. Post-trial motions were filed and denied, and on September 11, 1974, appellant was sentenced to two concurrent terms of imprisonment of 6 to 28 months. On October 4, 1974, this appeal was filed. — 163 — Appellant first contends that his conviction should be overturned because the Commonwealth introduced evidence obtained as the result of an illegal search. However, appellant failed to raise the legality of the search in a pre-trial application as required by Pa.R.Crim.P. 804 and 305. Therefore, we cannot consider this issue on appeal. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Appellant next asserts that Section 3903 of the Crimes Code in effect at the time of his trial2 is unconstitutional. He believes that Section 3903 placed upon him the burden of proof of an essential element of the crime of theft, that being the value of the stolen property. We cannot agree with appellant’s position. Section 3921(a) of the Crimes Code, “theft by unlawful taking or disposition,” describes the elements of the conduct which constitutes theft of movable property: “A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” “Movable property” is defined in Section 3901 of the Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa. C.S. §3901), as “property, the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby have no physical location.” Neither Section 3921 which details the crime nor Section 3901 which describes the property contain the element of value. We believe, therefore, that value is not an essential element of the crime of theft. Rather, the value of the stolen items becomes relevant only to establish the grade of the offense for purposes of imposing sentence. — 164 — In the instant case, there is no contention that the evidence was insufficient to establish appellant’s culpability in terms of Section 3921(a). Having' determined that appellant was indeed culpable of theft, our next inquiry is to determine the degree of his guilt for purposes of imposing sentence. It is at this point that Section 3903 becomes significant. That section before amendment indicated that theft offenses were to be graded as follows: “ (a) Felony of the third degree. — 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) 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 a fiduciary obligation, and the actor proves by a preponderance of the evidence that: (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 deemed to be the highest value, by any reasonable standard, of the property or services which the actor stole or attempted to steal. Amounts involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.” — 165 — Appellant contends that because Section 3903(b) required “the actor” to prove the value of the stolen goods, the section was unconstitutional. He further contends that requiring “the actor” to come forward with evidence of value at the sentencing proceeding forces him to bear witness against himself without regard to his guilt or innocence. We believe, however, that the presumption of innocence does not attach to a sentencing hearing, for at that time, a defendant stands before the bench as a convicted felon or misdemeanant. Therefore, whether evidence of the value of the stolen goods is introduced at trial or during the sentencing proceedings is not relevant to a determination of guilt and does no injustice to the presumption of innocence. Moreover, this rationale is consistent with Section 1063 which enumerates the classes of offenses. Section 106 provides in relevant part: “ (b) Classification of crimes.— (4) A crime is a felony of the third degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of whi.ch is not more than seven years. (5) A crime declared to be a felony, without specification of degree, is of the third degree. (6) A crime is a misdemeanor of the first degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than five years. (7) A crime is a misdemeanor of the second degree if it is so designated in this title or if a per — 166 — son convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than two years. (8) A crime is a misdemeanor of the third degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than one year. (e) Section applicable to other statutes. — An offense hereafter defined by any statute other than this title shall be classified as provided in this section.” Section 106 establishes degrees for purposes of sentencing only. Nothing in Section 106 changes the elements of the crimes classified therein. The section merely provides for different punishments, depending upon the severity of the proscribed conduct detailed elsewhere in the Crimes Code. Section 3903 has the same impact upon the theft crimes. We hold, therefore, that Section 3903 did not unconstitutionally burden the accused with proof of an essential element of the crime of theft, nor force him to incriminate himself. Section 3903 relates only to the grading of the offense for purposes of sentencing, and not to the elements of the crime of theft. We recognize that the amendment to Section 3903, to a large extent, has made this a moot issue. The amendment, Act of "June 17, 1974, P.L. 356, No. 118, §1 (18 Pa.C.S. §3903), has clarified the legislature’s intention to place the burden of proof of the market value of the stolen goods upon the Commonwealth.4 The amendment became effective on June 17, 1974, well after the trial of the instant case, and has no bearing upon this decision. Judgment affirmed. Footnotes [1] Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §3921). [2] Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §3903). This section was amended by the Act of June 17, 1974, P.L. 356, No. 118, §1, effective June 17, 1974. The effect of the amendment will be discussed in the opinion, infra. [3] Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §106). [4] The sufficiency of the evidence to establish market value is not an issue raised on this appeal.