Com. v. Hanes

• Decision Date: 09 March 1987
• Citation: 361 Pa.Super. 357,522 A.2d 622
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. Robert William HANES, Appellant.

Page 622

522 A.2d 622

361 Pa.Super. 357

COMMONWEALTH of Pennsylvania v. Robert William HANES, Appellant.

Superior Court of Pennsylvania.

Argued May 20, 1986.

Filed March 9, 1987.

James L. Martin, Ridgway, for appellant.

Vernon D. Roof, Dist. Atty., Ridgway, for Com., appellee.

Before BROSKY, KELLY and ROBERTS, JJ.

KELLY, Judge:

In this case of first impression, we are called upon to determine whether the trial court erred in treating evidence of an alleged oral contract price for stolen property as conclusive evidence of value. We find that the trial court erred, and announce that, although proof of the retail or contract price of stolen property is prima facie evidence of value in a theft case, such evidence is not conclusive. Accordingly, a defendant may present any evidence, direct or circumstantial, which bears upon the market value of the same or similar items in the open market at the time and place of the theft to rebut the prima facie evidence presented.

Appellant appeals from his June 25, 1985 conviction for the theft ¹ of a truckload of live red oak logs following a jury trial. The jury set the value of the stolen logs at two thousand dollars ($2,000.00); accordingly, the theft was graded as a first degree misdemeanor. ²

Post-verdict motions were argued and denied, and on September 4, 1985, appellant was sentenced to a term of imprisonment in the Elk County Prison of not less than three (3) months nor more than eighteen (18) months with the privilege of work release. He was also ordered to pay restitution to Mr. Erlanson in the amount of two thousand dollars ($2,000.00). Timely notice of appeal was filed. Although appellant has raised five issues on appeal, ³ we address only the issues as to the sufficiency of the evidence and the admissibility of defense evidence to rebut the Commonwealth's prima facie showing of value. ⁴

I.

Appellant first contends that the evidence was insufficient to sustain his conviction. Appellant argues that the circumstantial evidence was insufficient to establish beyond a reasonable doubt that he (and no other person) stole the logs. Appellant argues further that the Commonwealth failed to establish the value of the stolen logs beyond a reasonable doubt, in that its calculation of value was based upon estimates as to the quantity and quality of the logs stolen. We cannot agree.

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Commonwealth v. Reddix, 355 Pa.Super. 514, 519, 513 A.2d 1041, 1045 (1986); Commonwealth v. Duffy, 355 Pa.Super. 145, 154-55, 512 A.2d 1253, 1260-61 (1986).

A.

A review of the record discloses sufficient evidence from which the jury could find that appellant stole the logs. Mr. Erlanson testified that: his was the only outfit cutting live red oak logs in the Quehanna area at the time of the theft; he passed appellant hauling a load of live red oak logs along the road leading from his logging site in the Quehanna area late in the afternoon on the day of the theft; as an experienced logger, he could tell whether the logs on a passing truck were live or dead; he knew appellant and appellant's truck from previous business dealings; he noticed that dust raised by some other truck had not yet settled along the dirt road which led to his logging site; when he arrived at his logging site minutes later, there were distinctive tire tracks from the type of truck which is used to haul timber, there were impressions left in the ground from stabilizers which are used in the loading of timber, and a load of live red oak logs was missing from the landing area; he suspected theft, but could not be sure until he checked with Mr. Monroe Johnson, who worked for Mr. Erlanson, to see if he had hauled the logs away; and his suspicions of theft were confirmed by Mr. Monroe Johnson the following day. (N.T. 6/25/85 at 14-41).

Mr. Monroe Johnson testified that the landing area was filled with live red oak logs when he left the logging site at about 4:30 p.m. on the day of the theft. He also corroborated Mr. Erlanson's testimony that an experienced logger could easily tell whether the logs on a passing truck were live or dead red oak logs. (N.T. 6/25/85 at 102-140).

Appellant admitted that he was at Mr. Erlanson's logging site minutes before he passed Mr. Erlanson's truck on the highway. (N.T. 6/25/85 at 211). Appellant explained that he had gone to Mr. Erlanson's logging site to tell Mr. Erlanson about a tract of timber which was for sale and to see if Mr. Erlanson was interested in buying the tract and hiring him to haul the timber. (N.T. 6/25/85 at 211, 255-57). Appellant claimed that the logs on his truck were dead red oak logs he was hauling for Mallery Lumber Company. (N.T. 6/25/85 at 209-61; see also N.T. 6/25/85 at 168, 185, 261).

Appellant argues that proof of his presence at the scene of the crime was not sufficient to sustain his conviction. However, cases cited by the appellant in support of this proposition ⁵ are inapposite. The evidence (viewed in the light most favorable to the Commonwealth as the verdict winner), and the reasonable inferences deducible therefrom, established more than appellant's mere presence at the scene of the crime. Indeed, the evidence was sufficient to establish that Mr. Erlanson had witnessed the appellant in the act of hauling away the stolen logs. ⁶

B.

Appellant further contends that the evidence was insufficient to establish the value of the logs beyond a reasonable doubt. Appellant argues that the jury's determination of value was invalid because it was calculated based upon estimates of the quantity and quality of the logs taken. Appellant concludes that the value assigned by the jury amounted to speculation and conjecture. We cannot agree.

Under Pennsylvania law, gradation of theft offenses is based upon the value of the stolen property. 18 Pa.C.S.A. § 3903. Consequently, the burden to establish the value of the stolen property is upon the Commonwealth. See Commonwealth v. Stauffer, 239 Pa.Super. 463, 465, 361 A.2d 383, 384 (1976); Commonwealth v. Warlow, 237 Pa.Super. 120, 123, 346 A.2d 826, 827 (1975). "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(c). Section 3903(c)(1) provides:

(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.

"Market value has been defined as the price which a purchaser, willing but not obligated to buy, would pay an owner, willing but not obligated to sell...." Commonwealth v. Warlow, supra, 346 A.2d at 828. ⁷

Testimony of the owner or an employee of the owner is admissible to establish the market value of the stolen property. Commonwealth v. Warlow, supra, 346 A.2d at 829 (applying the rule from civil law); see also Commonwealth v. Walentoski, 300 Pa.Super. 559, 565 n. 2, 446 A.2d 1300, 1303 n. 2 (1982) (employee's statement as to value); Commonwealth v. Stafford, 272 Pa.Super. 505, 510, 416 A.2d 570, 573 (1979) (proprietor's statement as to value). "The theory which underlies these cases is that an owner, by reason of his status as owner, is deemed qualified to give estimates of the value of what he owns." Commonwealth v. Warlow, supra, 346 A.2d at 829 (citing cases) (emphasis added).

When the property is stolen from a merchant, the retail or contract price is prima facie evidence of market value. Commonwealth v. Walentoski, supra, 446 A.2d at 1303 n. 2. (order price); Commonwealth v. Warlow, supra, 346 A.2d at 829 (value of stock in trade); accord State v. Sorrell, 95 Ariz. 220, 388 P.2d 429 (1964); People v. Cook, 233 Cal.App.2d 435, 43 Cal.Rptr. 646 (1965); Maisel v. People, 166 Colo. 161, 442 P.2d 399 (1968); Lee v. People, 137 Colo. 465, 326 P.2d 660 (1958); State v. White, 37 Conn.Sup. 796, 437 A.2d 145 (1981); People v. Fognini, 374 Ill. 161, 28 N.E.2d 95 (1940); State v. McDonald, 312 Minn. 320, 251 N.W.2d 705 (1977); State v. Moody, supra; State v. King, 164 N.J.Super. 330, 396 A.2d 354 (1978); State v. Hill, 153 N.J.Super. 558, 380 A.2d 722 (1977); People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69 (1959).

In the instant case, Mr. Erlanson testified that he had oral contracts to sell his live red oak logs to Mr. Larry Johnson for $500.00 per thousand board feet of saw board grade wood and to Webb Veneer for $1.00 per board foot of veneer grade wood. (N.T. 6/25/85 at 27-28). Both Mr. Erlanson and his employee, Mr. Monroe Johnson, testified that a full load of logs had been taken and that an average load contained 3,000 board feet. (N.T. 6/25/85 at 28, 115). Mr. Monroe Johnson also testified that at least two-thirds of the logs were veneer grade wood and that only one-third was saw board grade. (N.T. 6/25/85 at 115).

Appellant contends that because the calculation of the market value of the stolen logs was made from estimates of the quantity and quality of the logs stolen, the Commonwealth failed to establish the market value of the stolen logs beyond a reasonable doubt. Appellant, however, misconstrues the Commonwealth's burden. The Commonwealth is not required to establish the precise market value of the stolen property. Rather, the Commonwealth must present evidence from which a reasonable jury may conclude that the market value was at least a certain amount.

In the instant case, the Commonwealth presented opinion evidence from the owner and an employee of the owner of the stolen property which could have supported a finding that the market value of the logs was as high...