Opinion
No. 3323 EDA 1999.
Filed: October 17, 2000. Petition for Reargument Filed October 30, 2000.
Appeal from the Order entering Judgment of Sentence October 26, 1999 in the Court of Common Pleas of Montgomery County, Criminal, No. 5833-98.
BEFORE: DEL SOLE, POPOVICH and OLSZEWSKI, JJ.
¶ 1 Appellant Gregory Shamberger was convicted of theft, attempted theft, unsworn falsification, and three counts of forgery. He was sentenced to a total of 25 months to 10 years' imprisonment. This direct appeal followed. We affirm the convictions but vacate the sentences and remand for resentencing.
¶ 2 On appeal, Appellant presents the following issues:
1. Did the trial court err by allowing the prosecution to present evidence of a June 17, 1998 theft, to prove the intent and identity of the defendant at two subsequent thefts.
2. Was the evidence insufficient to convict Mr. Shamberger of the three forgery charges.
3. Did the trial court err in his instruction to the jury on the charge of forgery.
4. Was trial counsel ineffective for failing to raise the issue that the defendant was not properly advised in the bills of information that he would have to answer to a charge of Theft: Property Taken from the Person.
5. Was the evidence insufficient to convict Mr. Shamberger of the two misdemeanor one theft charges, to wit: Property Taken from the Person.
6. Was trial counsel ineffective for failing to object to the trial courts instruction to the jury which ignored an element of the theft offense, to wit: items were taken from the person.
7. Was trial counsel ineffective for agreeing to stipulate as a matter of fact and matter of law, that the theft charges were graded as misdemeanor ones because the items taken from the victims were removed from the victims person.
8. Did the trial court imposed [sic] an illegal sentence on Mr. Shamberger to the theft convictions, which should be graded as third degree misdemeanors.
Appellant's Brief at 2.
¶ 3 Because Appellant's claims of ineffectiveness and trial error will not need to be discussed if we find the evidence insufficient, we will discuss the issues out of order, determining first whether the evidence is sufficient then disposing of the other claims of error. In reviewing the sufficiency of the evidence claims, we view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Rose, 344 A.2d 824 (Pa. 1975).
¶ 4 Viewed in this light, the evidence presented at trial established that, in late August 1998, Christina Geiser attended a movie alone at the Regal Theater in Plymouth Township. She sat at the back of the nearly empty theater and placed her purse on the floor next to her. At some point during the movie she heard a noise and turned to see someone sit down behind her. When the movie ended, she noticed the person was no longer sitting behind her. The next day she discovered that her money and credit cards were missing from her wallet.
¶ 5 Less than two weeks later, Sueann Hedgepeth also attended a movie alone at the Regal. Only about three other patrons were in the theater with her. Shortly after the movie started, she noticed Appellant repeatedly enter and leave the theater. Eventually, he sat behind her. He did not stay for the whole movie, however, as Ms. Hedgepeth later heard a noise and observed him quietly leaving the theater. She checked her purse and discovered that her wallet was missing. She ran out of the theater after Appellant who then entered the men's room. Ultimately, the police arrived and Appellant was arrested. Ms. Hedgepeth's wallet was found under the row of seats behind the row in which she had been sitting.
¶ 6 Regarding the forgery convictions, Appellant claims the evidence was insufficient and the trial court erred in its jury instruction on forgery. Under the Crimes Code, a person commits forgery if, with intent to defraud, the person "makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act. . . ." 18 Pa.C.S.A. § 4101(a)(2). The Commonwealth's evidence showed that Appellant, after he was arrested, signed a fictitious name, Kevin Price, on three separate fingerprint cards. Appellant contends this evidence is insufficient to establish forgery because it did not show that the police were injured or deprived of a property right by his actions.
¶ 7 Appellant's argument is unavailing. While intent to defraud is an element of the offense of forgery, it is not essential that the fraud shall have been successful. Commonwealth v. Sheaffer, 23 A.2d 215 (Pa.Super. 1941). Furthermore, forgery is not restricted to actions that prejudice the pecuniary or property rights of another. Commonwealth v. Green, 211 A.2d 5 (Pa.Super. 1965). Indeed, both signing another person's name and signing a fictitious name have been held sufficient. Id.; Commonwealth v. Zabala, 449 A.2d 583 (Pa.Super. 1982).
¶ 8 Appellant also challenges the court's jury instruction on this point, claiming that the court erred by not restricting its definition of "intent to defraud" solely to depriving someone of their property. As stated above, this is not an accurate statement of the law of forgery; the intent to defraud under the forgery statute is not so restricted. Green, 211 A.2d 5. We have reviewed the court's instruction on the elements of forgery and find that it sufficiently and accurately set forth the appropriate principles of law. This claim is without merit.
¶ 9 Regarding his theft convictions, Appellant argues several errors all arising from his contention that the items were not taken "from the person." Initially, we note that Appellant was charged with theft by unlawful taking which is defined as follows:
Specifically, in issues numbered 4-8, Appellant complains that the bills of information did not give him notice that he would have to answer to theft "from the person," that the evidence was insufficient, that the trial court failed to instruct the jury on this element of the offense, and that counsel was ineffective for failing to object to the jury instruction and for agreeing to stipulate that the items were taken "from the person." Appellant further argues that the court imposed an illegal sentence because the theft convictions should be graded as third degree misdemeanors. Our discussion encompasses all of these issues.
Theft by unlawful taking or disposition
(a) 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.
18 Pa.C.S.A. § 3921(a).
¶ 10 The elements of theft, therefore, are (1) unlawfully taking (2) the property of another (3) with the intent to deprive the lawful owner. Whether the property is taken "from the person" is a factor determining the grading of the offense. 18 Pa.C.S.A. § 3903. If the property is taken from the person or by threat it is a misdemeanor of the first degree; if the property is not taken from the person or by threat it is either a misdemeanor of the second or third degree depending on the amount involved. 18 Pa.C.S.A. § 3903(b). Whether the property is or is not taken "from the person" is only relevant to the grading of the offense and is therefore not an element of the crime of theft. See Commonwealth v. McKennion, 340 A.2d 889 (Pa.Super. 1975) (since value of goods stolen is only relevant to grading of theft offense, it is not an element of the crime). Thus, Appellant's issue is not one of the sufficiency of the evidence, as the evidence detailed above, if believed by the fact finder, is sufficient to establish the elements of an unlawful taking of the property of another with the intent to deprive thereof. Similarly, since it is not an element of the crime, it did not need to be detailed in the information. The issue is simply one of the grading of the offense: whether, for sentencing purposes, the crime is a misdemeanor of the first, second or third degree.
Theft can also be a felony of the third degree under circumstances not relevant to this case. 18 Pa.C.S.A. § 3903(a).
¶ 11 At trial, Appellant's counsel stipulated that the property was taken "from the person." Thus, on appeal, the issue is presented in terms of counsel's ineffectiveness in so stipulating. In reviewing ineffectiveness claims, we must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 394 A.2d 971 (Pa. 1978). If there is arguable merit to the claim, we will then look to see whether the course chosen by counsel had some reasonable basis aimed at promoting his client's interests. Commonwealth v. Evans, 413 A.2d 1025 (Pa. 1980). Finally, there must be a showing that counsel's ineffectiveness prejudiced Appellant's case. Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). ¶ 12 Because there is no case law precisely on point, both the Commonwealth and the trial court rely on Commonwealth v. Williams, 567 A.2d 709 (Pa.Super. 1989). In Williams, the victim's wallet was removed from an open tote bag she was carrying as she was boarding a bus. We there held that, since the victim was carrying the tote bag on her person, the wallet was taken "from the person" of the victim. Presently, however, the victims were not carrying their purses on their persons but had removed them and set them down at some distance, albeit a short distance, from them. We find we are unable to accept the argument that a woman's purse is still on her person simply because she sets it down near her person. Therefore, we find merit to Appellant's claim that the evidence did not show a theft "from the person."
Some of the more obvious problems with accepting this argument are: How near does the purse have to be in order to be considered on the person? Do we apply the same rationale to a man's wallet or a student's backpack?
¶ 13 The prejudice to Appellant is obvious: he was sentenced to a higher grade crime as a result of counsel's stipulation that the items were taken "from the person." Moreover, there was absolutely nothing to be gained by counsel's actions; there was no reasonable basis for the stipulation. Thus, we find counsel ineffective for stipulating that the theft was "from the person."
¶ 14 Our conclusion that the theft was not "from the person" does not affect the underlying conviction but only the sentencing. We therefore vacate the sentences and remand for resentencing in accordance with the appropriate grading for thefts which are not "from the person."
¶ 15 Finally, we address Appellant's claim that the trial court erred when it permitted the Commonwealth to introduce evidence of a crime other than the ones for which he was on trial. The Commonwealth's first witness, Linda Reese, testified that on June 17, 1998, she and her husband attended a movie at the Regal Theater in Plymouth. The theater was not very crowded. She sat on the side near the back and no one was seated around her. During the movie, she noticed someone climbing over the seats. He sat down behind her and in a few minutes was joined by a woman. Ms. Reese had hung the strap of her purse over the arm of the seat next to her with the purse actually sitting on the floor. At the end of the movie, she realized her wallet was not in her purse. She found the wallet under the seat next to her but all the money and credit cards were missing. The Commonwealth's second witness was a theater employee who identified Appellant as the person who sat down behind Ms. Reese.
¶ 16 Evidence of other crimes is generally inadmissible when it is offered merely to portray the defendant as a bad person. Pa.R.E. 404(b); Commonwealth v. Jones, 454 A.2d 8 (Pa. 1982). Such evidence is admissible, however, when it is offered to prove motive, intent, absence of mistake or accident, common scheme or plan. Id. It is also admissible to establish identity where the crimes are sufficiently similar. Commonwealth v. Thomas, 717 A.2d 468 (Pa. 1998). Thus, in Thomas, the witness's testimony established that the defendant had a propensity for making unauthorized entries into package delivery trucks when the drivers of the trucks stepped away from the trucks. This occurred in the same neighborhood where the victim, a driver of a Federal Express truck, was murdered. The Supreme Court found the testimony relevant and admissible because it tended to establish the identity of the person who might have had a confrontation with the victim as he stood at the side of his Federal Express delivery truck. Similarly, Ms. Reese's testimony showed that Appellant had previously used the same method of selecting a victim in a movie theater, seating himself behind her, and removing her wallet from her purse. This testimony tended to establish his identity as the person who removed money and credit cards from Ms. Geiser's purse and similarly tended to discredit any evidence that he was an innocent bystander in the Hedgepeth case. Thus, the evidence was properly admitted.
We note that the trial court properly instructed the jury on the limited purpose for which this evidence was admitted. N.T., 4/8-9/99, at 173-174.
¶ 17 Convictions affirmed. Judgments of sentence vacated and case remanded for resentencing in accordance with this memorandum.
Since this may upset the trial court's overall sentencing scheme, we vacate the sentences imposed on all the convictions. See Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa. 1986).
¶ 18 Judge Popovich files a dissenting statement.
¶ 1 I respectfully dissent from that portion of the majority's opinion which holds that appellant's thefts were not misdemeanors of the first degree. Accordingly, I would affirm appellant's judgment of sentence.
¶ 2 Although appellant's victims were not carrying their purses at the time appellant removed their wallets from the purses similar to the victim in Commonwealth v. Williams, 567 A.2d 709 (Pa.Super. 1989), I, nevertheless, am convinced that the wallets were taken "from the person" within the meaning of 18 Pa.C.S.A. § 3903(b).
¶ 3 The majority adopts the reasoning that the stolen objects had to be on the victims' persons for the thefts to constitute misdemeanors of the first degree, stating: "We find we are unable to accept the argument that a woman's purse is still on her person simply because she sets it down near her person." Majority Opinion, p. 7 (emphasis in original). I suggest that the statute (§ 3903(b)) does not require the stolen object to have been "on the person" of the victim at the time of the theft. Rather, it merely provides that a theft is a misdemeanor of the first degree "if the property was . . . taken from the person. . . ." 18 Pa.C.S.A. § 3903(b). That is precisely what happened in the present case where appellant stole the wallets from the victim's purses which had been placed at their feet. Clearly, the purses were within the victim's presence and area of control at the time of the thefts, and, consequently, I am convinced that the property was "taken from the person[s]" within the meaning of the statute.
If the majority's interpretation of the statute is correct, I must question why the Legislature did not simply word the statute as follows: "Theft not within subsection (a) or (a.1) of this section, constitutes a misdemeanor of the first degree, except that if the property was not taken from the person of the victim or by threat, or in breach of fiduciary obligation, and:. . . ."
¶ 4 In sum, I do not think appellant may reduce his criminal liability simply because he was able to remove the wallets from the purses without disturbing the victims, such that they grabbed their purses during the theft. Accordingly, I would affirm.