Commonwealth v. Deer

615 A.2d 386, 419 Pa. Super. 321, 1992 Pa. Super. LEXIS 3608
CourtSuperior Court of Pennsylvania
DecidedOctober 21, 1992
DocketNo. 1515
StatusPublished
Cited by6 cases

This text of 615 A.2d 386 (Commonwealth v. Deer) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Deer, 615 A.2d 386, 419 Pa. Super. 321, 1992 Pa. Super. LEXIS 3608 (Pa. Ct. App. 1992).

Opinion

DEL SOLE, Judge:

Appellant was convicted in a non-jury proceeding of one count of theft of services in violation of 18 Pa.C.S.A. § 3926. The charge was based upon the Commonwealth’s allegation that Appellant unlawfully obtained natural gas from the Equitable Gas Company at his place of business by means of an illegal tap. Following the imposition of sentence which ordered Appellant to serve a period of probation for three years and directed that he pay court costs and restitution in the amount of $11,000, he filed this appeal.

The challenges made on appeal are to the sufficiency of the evidence offered in support of Appellant’s conviction, and to the evidence elicited in support of the court’s conclusion regarding the amount of gas diverted to the premises. Appellant also claims that the statutory presumption found in 18 Pa.C.S.A. 3926(d)(1) should be declared unconstitutional.

We begin by addressing the constitutional claim made by Appellant. The statutory inference in question provides:

(d) Inference from using nonmetered utility service.— Any person having possession of or access to the location of a public utility meter or service measuring device which has [324]*324been avoided or tampered with so as to inhibit or prevent the accurate measurement of utility service and who enjoys the use of or receives the benefit from the public utility service intended to be metered or measured by the public utility meter or measuring device so avoided or tampered with may be reasonably inferred to have acted to avoid or tamper with the public utility meter or measuring device with the intent to obtain the public utility service without making full compensation therefor.

18 Pa.C.S.A. 3926(d).

Appellants seeks a declaration that this statute is unconstitutional because, he contends, it allows a trial court to substitute proof of his guilt with a presumption. In support of his claim Appellant cites to a Court of Common Pleas decision from Centre County, Commonwealth v. Larocca, 25 Pa.D. & C.3d 620 (1981). Therein the defendant was charged with improperly obtaining electrical service by tampering with an electrical meter which serviced an apartment in State College rented by the defendant and three other persons. On two occasions a meter reader found the electric meter turned upside down, causing it to run backward reducing the recorded usage of electrical service. Because the defendant was the listed subscriber for the electrical service, the Commonwealth sought to rely on the statutory inference to establish the defendant’s guilt of theft of services. The court refused to allow the inference to apply to the defendant based upon his status as a subscriber. The court stated “we feel that the statutory inference ignores the quasi-contractual duty of the ‘roommates’ to defendant, and the reality that they too benefit from the inaccurate measurement of the utility usage.” Id. at 624. Because the court found that the statute did not recognize that others who benefitted from the service may be responsible for the theft, it ruled that the statutory inference is “irrational” and “arbitrary.” Id.

Unlike the court in Larocca we conclude that the statute does recognize that more that one person may be the beneficiary of service. The statute simply allows an inference where such a beneficiary has access to a meter which was tampered [325]*325with to prevent accurate measurement. The fact that others may also benefit will allow this inference to apply equally to them. It remains, however, the Commonwealth’s responsibility after application of the inference to establish beyond a reasonable doubt that the defendant committed the theft. See Commonwealth v. Gallagher, 400 Pa.Super. 71, 582 A.2d 1349 (1990) (where the defendant only lived at a residence where utility service was tampered with intermittently and up to ten others lived there during the relevant time, there was insufficient evidence to sustain a conviction of theft of services.) The absence of proof may render a conviction unconstitutional, but the inference itself, sanctioned by statute, is not.

An inference has been defined as “no more than a logical tool enabling the trier of fact to proceed from one fact to another.” Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983) citing Commonwealth v. Shaffer, 447 Pa. 91, 105, 288 A.2d 727, 735 (1972) cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972). Where the inferred fact is “more likely than not to flow from the proved fact on which it is made to depend” the evidentiary inference will pass constitutional scrutiny. Id. We find that the inference challenged in the present case is able to meet the “more likely than not” standard. Where an individual has access to or possession of a measuring device, and the device has been shown to have been tampered with so as to inhibit or prevent the accurate measurement of utility service, and where this same individual enjoys the use or receives the benefit of the utility service which has been interrupted, then it is “more likely than not” that this individual tampered with the measuring device with the intent of obtaining service without making full compensation for it.

In cases where the sole evidence of guilt or an element of the offense is inferential, “then the inferred fact must follow beyond a reasonable doubt from the proved facts.” Commonwealth v. Jones, 242 Pa.Super. 471, 364 A.2d 368, 372 (1976). In other cases, the inference is but one piece of circumstantial evidence designed to prove guilt. “The focus of our inquiry then becomes, as always, whether the totality of the evidence, [326]*326together with all reasonable inferences, is sufficient in law to prove the defendant’s guilt beyond a reasonable doubt.” Id. With respect to the inference to be drawn from the possession of recently stolen goods it has been stated:

“[N]one of [the cases] holds that it is unconstitutional to infer from possession of stolen goods that the possessor knew they were stolen. Rather, ... a conviction either based upon that inference alone, or reached without due regard to evidence of surrounding circumstances, cannot stand, because it is based on less than proof beyond a reasonable doubt. Such a conviction must be reversed, because proof beyond a reasonable doubt is a requirement of due process. Thus, the inference that the possessor of recently stolen goods knew they were stolen is not an ‘unconstitutional’ inference ...; rather it is an inference that, if misused, will in certain cases lead to an unconstitutional result.”

Id., quoting Commonwealth v. Simmons, 233 Pa.Super. 547, 556-557, 336 A.2d 624, 629 (1975).

With this background we turn to an examination of the evidénce offered in this case and view it in a light most favorable to the Commonwealth. The property in question was owned by an individual who resides in Florida.

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Cite This Page — Counsel Stack

Bluebook (online)
615 A.2d 386, 419 Pa. Super. 321, 1992 Pa. Super. LEXIS 3608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-deer-pasuperct-1992.