Commonwealth v. Holzlein

706 A.2d 848, 1997 Pa. Super. LEXIS 3870

• Court: Superior Court of Pennsylvania
• Decided: December 30, 1997
• Status: Published

Opinions

BECK, Judge.

In this appeal we address, inter alia, two issues: whether appellant preserved his weight of the evidence claim for appellate review and whether the trial court correctly graded appellant’s offenses under the Crimes Code.

Appellant was convicted of receiving stolen property, conspiracy and related offenses. In addition to asserting that his conviction was against the weight of the evidence and that his sentence was illegal, he claims the court erred in transferring his case from juvenile to adult court. We find no merit in any of appellant’s challenges and we therefore affirm the judgment of sentence.

Appellant, who was a minor at the time he committed the crimes at issue, joined with another man and stole eight guns from the home of a neighbor. Two years after the crimes were committed the police charged appellant. Based on a confession from appellant’s cohort and other facts implicating appellant, police filed a criminal complaint charging appellant with multiple counts of theft, conspiracy, receiving stolen property, hindering apprehension, tampering with evidence and false reports.¹ The Commonwealth then sought and was granted a transfer of appellant’s case from juvenile to criminal court. A jury acquitted appellant of the theft counts but convicted him of receiving stolen property and conspiracy, as well as the false reports and tampering charges.

Appellant’s first issue on appeal concerns the court’s certification of the case to criminal court. A finding that a juvenile is not amenable to treatment within the juvenile system will be disturbed only where a gross abuse of discretion is established. Commonwealth v. Moss, 518 Pa. 337, 543 A.2d 514, 516 (1988). The Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365, provides a list of factors that must be considered by the trial court in assessing an offender’s amenability to treatment in the juvenile system. See 42 Pa.C.S.A. § 6355(a)(4).

Upon review of the court’s detailed and comprehensive order transferring the case to criminal court and in light of appellant’s history, we find no abuse of discretion by the trial court and conclude that the transfer was appropriate. See Commonwealth v. Potts, 449 Pa.Super. 306, 673 A.2d 956, appeal denied, 545 Pa. 669, 681 A.2d 1342 (1996).

Appellant next argues that the verdict was against the weight of the evidence. Appellant did not raise this claim before the trial court in the form of a post-sentence motion, but he did include it in his Pa. R.A.P. 1925(b) Statement. However, the trial court did not address the issue in its opinion. The question is whether appellant has preserved the issue for review.

Since the 1994 amendments to the Pennsylvania Rules of Criminal Procedure, the filing of post-trial motions, now known as post-sentence motions, is optional. As long as an issue is preserved before or in the course of trial, a litigant need not return to the trial court and again request relief after conviction and sentencing. See Pa. R.Crim. P. 1410. The enactment of amended Rule 1410 has spawned a series of problems regarding those issues that are not typically raised before or during a trial, including a claim that the verdict is against the weight of the evidence. See Commonwealth v. Clinton, 468 Pa.Super. 385, 683 A.2d 1236 (1996) (listing cases that hold that “a defendant must always file a post7sentence motion in order to preserve a claim assailing a verdict as against the weight' of the evidence”). See also Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d 237 (1996) (specific discretionary sentencing claim involving trial court’s alleged failure to state reasons for the sentence on the record may be addressed for the first time by appellate court); Commonwealth v. Jarvis, 444 Pa.Super. 295, 663 A.2d 790 (1995) (general claim regarding discretionary aspects of sentence must be made to the trial court in the first instance despite amendments to post-trial criminal procedure).

Recently our supreme court considered preservation of a weight of the evidence claim. In Commonwealth v. Widmer, 547 Pa. 137, 689 A.2d 211 (1997), the appellant failed to file a post-sentence motion raising a weight of the evidence claim, but raised the issue in his Rule 1925(b) Statement. The trial court addressed the issue in its opinion and concluded that the verdict was indeed against the weight of the evidence. Nonetheless, a panel of this court found that appellant’s claim could not be considered since the issue was not properly preserved below. The fact that the trial court addressed the issue in its opinion made no difference to the panel since the trial court no longer had jurisdiction to grant or deny the motion for a new trial.

The supreme court disagreed with the superior court and reversed its order. While recognizing that a weight of the evidence claim must be analyzed in the first instance by the trial court, the Widmer court found that since the trial judge addressed the claim in his opinion, it was appropriate for the appellate court to address the claim as well. Noting that “there was no need for the Superior Court to review a cold record and make an initial determination concerning the weight of the evidence,” the Widmer court held that appellate review of the claim was proper. Id. at 138-40, 689 A.2d at 212.

The ease at bar presents a different problem procedurally. Unlike Widmer, in this case the trial court did not address appellant’s weight claim. Therefore, despite the fact that appellant here did exactly what the appellant in Widmer did, that is, raise the claim for the first time in his Rule 1925(b) Statement, we are without the trial judge’s assessment of the claim. Our understanding of the holding in Widmer is that an appellate court is not permitted to review a weight of the evidence claim based on a cold record. See also Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994) (appellate court is only authorized to review trial court’s assessment of weight claim and is powerless to consider weight claim on its own). We conclude that we are unauthorized to address appellant’s claim.²

Appellant’s final claim is that his sentences for receiving stolen property and conspiracy are illegal. He asserts that the convictions should have been graded as first degree misdemeanors and not third degree felonies. The grading of theft offenses is governed by statute, which provides, in pertinent part:

(a) Felony of the second degree. — Theft constitutes a felony of the second degree if the offense is committed during a manmade disaster, a natural disaster or a war-caused disaster_

(a.l) Felony of the third degree. — Except as provided in subsection (a), theft constitutes a felony of the third degree if the amount exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle or 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.

18 Pa.C.S.A. § 3903 (West 1983, amended Nov. 29,1990).

In this case the trial judge found that the stolen weapons were firearms and, therefore, appellant’s offenses were third degree felonies. Appellant argues that his receiving stolen property and conspiracy offenses can only be considered third degree felonies if the Commonwealth established he was in the business of buying and selling stolen property. Since the Commonwealth failed to do so, argues appellant, the offense grade was erroneous. We disagree.

The case of Commonwealth v. Dodge, 410 Pa.Super. 189, 599 A.2d 668 (1991), sheds light on this issue. In Dodge, the appellant was convicted of receiving stolen property for his part in the theft of some rifles. One of the issues in that ease was the grading of the appellant’s offense. This court framed the issue in Dodge as follows:

[Ajppellant contends that the sentence imposed by the trial court was illegal since the property stolen does not meet the definition of a firearm as contained in the Uniform Firearms Act of Pennsylvania [“the Act”].

Id. at 195, 599 A.2d at 671. After consideration, the court held that the definition of firearm as set forth in the Act, 18 Pa.C.S.A. § 6102, must be used in determining the grade of the appellant’s theft offense. Under § 6102, only rifles with barrels of less than 15 inches are considered firearms.³ Noting that the only testimony regarding the rifles in Dodge was testimony from a Commonwealth witness who mentioned a “30/30 rifle,” the court concluded that “the lower courtfs] grad[ing of] the offense as a felony of the third degree [based on the fact that] the rifle was a firearm ... cannot be upheld.” Id. at 197, 599 A.2d at 672.

The Dodge court went on to consider whether the grading of the offense could be upheld on another basis, that is, proof that the appellant had been in the business of buying and selling stolen property. Apparently, the trial court relied on this alternative ground in its Rule 1925 opinion. Rejecting this argument, the Dodge court noted that the question of whether a defendant was engaged in the business of buying and selling stolen property was an issue that must be decided by a jury, and could not be determined by the court at sentencing. Id.

The trial judge in this case found that the stolen weapons were firearms and, therefore, an offense grade of third-degree felony was appropriate. In response to the arguments asserted by appellant in his Rule 1925(b) Statement, the trial court framed the issue for this court as follows:

The question presented is whether Receiving Stolen Property is a third degree felony only when the defendant is involved in the business of buying and selling stolen property or is it also a third degree felony when the stolen property falls under one of the categories of property listed in § 3903(a.l)?

Trial Court Op. at 7. Appellant concedes that § 3903(a.l) is relevant to the issue of offense grade in this case. However, he does not frame the issue in the same manner as the trial court. After careful consideration of the statute and the relevant case law, we conclude that any theft charge that involves firearm's as the stolen property must be graded as a third degree felony.

A plain reading of the statutory provision prompts such a result. Section 3908 provides that “theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is a firearm ... or in the case of theft by receiving stolen property, the receiver is in the business of buying or selling stolen property.” 18 Pa. C.S.A. § 3903(a.l) (emphasis supplied). Despite the alternative nature of the language of the statute, appellant asks'us to ignore the first two clauses of the provision and proceeds directly to the third. However, if appellant’s analysis were correct, there would be no reason for the Dodge court to have considered the meaning of the term “firearm” since the only charge at issue in that case was receiving stolen property.

We read both § 3903(a.l) and the Dodge court’s interpretation of § 3903(a.l) to mean that any theft offense involving a large sum of money (over $2,000.00) or a firearm (as defined by § 6102) or a vehicle (such as a car or an airplane) is graded as a third degree felony. Further, regardless of the value or type of item stolen, a person convicted of receiving stolen property will have her offense graded as a third degree felony if it is established that she is a “fence,” that is, engaged in the business of buying and selling stolen property. This interpretation is not only logical given the language of the .statute, it also comports with the reasoning in Dodge.

Upon review of the record, we find support for the trial court’s finding that the weapons in this case were firearms and so exposed appellant to punishment for a third degree felony.⁴ Indeed, appellant does not even challenge the trial court’s conclusion that the guns were firearms; he instead relies on a limited reading of the statute in his effort to reduce his sentence. Because we find his argument is without merit, he is not entitled to relief.

Judgment of sentence affirmed.

POPOVICH, J., files a Concurring and Dissenting Opinion.

1 . Prior to his arrest but after the theft of the weapons, appellant and his partner in crime used at least one of the guns for target shooting.

The partner accidentally shot himself and required medical treatment. The young men told hospital personnel and police that an unknown assailant committed the shooting.

2 . We observe that, effective January 1, 1998, a newly promulgated rule of criminal procedure explicitly requires a party to raise a weight of the evidence claim either before sentencing, by way of oral or written motion, or after sentencing, by way of post-sentence motion. Failure to do so results in waiver. See Pa.R.Crim.P. 1124A and Comment thereto.

3 . At the time Dodge was decided, § 6102 also defined as a firearm “any pistol or revolver with a barrel of less than 12 inches [and] any shotgun with a barrel of less than 24 inches....” The statute currently defines a firearm as follows:

Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closest action, bolt or cylinder, whichever is applicable.

18 Pa. C.S.A. § 6102.

4 . We observe that in a concurring statement filed in Dodge, Judge Kelly suggested that the issue of whether a particular weapon constitutes a firearm under § 6102 should be decided by a jury. We disagree. The statute provides clear and simple definitions that can be objectively determined by the court. The answer depends simply on the measurement of the barrel.