Com. v. Shamberger

• Decision Date: 07 December 2001
• Citation: 788 A.2d 408,2001 PA Super. 351
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gregory SHAMBERGER, Appellant.
• Court: Pennsylvania Superior Court

788 A.2d 408

2001 PA Super. 351

COMMONWEALTH of Pennsylvania, Appellee, v. Gregory SHAMBERGER, Appellant.

Superior Court of Pennsylvania.

Argued May 3, 2001.

Filed December 7, 2001.

William R. McElroy, Hatboro, for appellant.

Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.

BEFORE: DEL SOLE, President Judge, CAVANAUGH, J., McEWEN, President Judge Emeritus, JOHNSON, JOYCE, STEVENS, MUSMANNO, LALLY-GREEN, and TODD, JJ.

TODD, J.:

¶ 1 Gregory Shamberger appeals¹ the judgment of sentence² of 25 months to 10 years imprisonment imposed after a jury convicted him of one count each of theft, attempted theft, and unsworn falsification to authorities, and three counts of forgery.³ Appellant's convictions arose out of the theft of items from handbags that theater patrons had placed on the floor of the theater while they were watching movies. We granted en banc review to consider a question of first impression in the Commonwealth, whether Appellant's theft convictions properly were graded for sentencing purposes misdemeanors of the first degree as thefts "from the person" under 18 Pa.C.S.A. § 3903(b). Upon review, we conclude that theft from the person under Section 3903(b) includes not only theft from the victim's body, but also theft in the victim's presence and from his immediate possession and control. Accordingly, we affirm.

¶ 2 The evidence presented at trial established that in June 1998, Linda Reese attended a movie with her husband at a theater at the Regal Cinemas complex in Plymouth Township. The couple sat in the back of a nearly empty theater. Reese placed her purse, which had been zipped closed, on the floor of the theater and placed the strap over the arm of her seat, keeping her hand on the strap. During the movie, Reese observed a man, who later was identified as Shamberger, climb over a row of seats and sit behind her. As she was preparing to leave the theater after the movie, Reese noticed that her purse had been opened and her wallet had been removed from her purse. Reese located the wallet on the floor under the seat next to hers with some of its contents spilled on the floor. Three credit cards and $40 in cash had been taken from Reese's wallet and unauthorized charges totaling approximately $200 later appeared on her credit card statement. Reese reported the incident to theater management and made a report to the police.

¶ 3 In late August 1998, Christina Geiser attended a movie by herself at the Regal Cinemas. Like Reese, Geiser sat in the back of a nearly empty theater and placed her handbag on the floor next to, but not touching, her foot. During the movie, she heard a noise and turned to see someone sit down behind her. At the end of the movie, she noticed that the person no longer was sitting behind her. Subsequently, she discovered that her money and three credit cards were missing from her wallet and that unauthorized charges in excess of $1,000 had been made on one of her missing credit cards. Geiser filed a police report regarding the theft.

¶ 4 In September 1998, Sueann Hedgepath had a similar experience while attending a movie at the same theater complex. Hedgepath, who also was alone, chose a seat near the rear of the almost-empty theater and placed her handbag on the floor. Shortly after the movie started, Hedgepath noticed Appellant repeatedly enter and leave the theater, eventually sitting behind her. Before the movie ended, Hedgepath heard a noise and observed Appellant leaving the theater. She immediately checked her purse and discovered that her wallet was missing. She quickly left the theater and observed Appellant entering the men's room in the lobby. Hedgepath alerted theater personnel who advised her to contact the police. The police arrived and arrested Appellant after Hedgepath identified him. The police located Hedgepath's wallet, its contents intact, under the row of seats behind the row in which she had been sitting.

¶ 5 One of the officers who responded to Hedgepath's call was Thomas R. Marinello of the Plymouth Township Police Department. Upon entering the lobby of the theater, Officer Marinello recognized Appellant as the man that he had stopped for vehicle code violations in the parking lot of the Regal Cinema on August 28, the day that Christina Geiser's cash and credit cards had been stolen. On that date, Appellant, who did not produce his driver's license or other identification, told Officer Marinello that his name was Kevin Price, and Officer Marinello issued two citations to Appellant under that name. At the conclusion of their encounter, Officer Marinello observed Appellant enter the Regal Cinema.

¶ 6 Upon his arrest on September 11, Appellant again identified himself to the police as Kevin Price and signed three fingerprint cards using that name. On September 14, another officer who had responded to Hedgepath's call, Detective Jeffery McGee, interviewed Karreem Alston, an usher at the Regal Cinema. Alston positively identified Appellant from a photo array and told Detective McGee that he had noticed Appellant going in and out of theaters on June 17, the day that Karen Reese's credit cards were stolen.

¶ 7 Appellant was tried before a jury on charges arising out of the theft from Christina Geiser, the attempted theft from Sueann Hedgepath, his provision of a fictitious name to Officer Marinello, and his signature of a fictitious name on the three fingerprint cards.⁴ Prior to closing arguments during Appellant's trial, Appellant's counsel stipulated that the theft offenses properly should be graded as first-degree misdemeanors.

¶ 8 Following his sentencing by the Honorable William R. Carpenter, Appellant sought to challenge his conviction on several grounds, including allegations that he had received ineffective assistance of counsel. The trial court accordingly appointed new counsel who filed post-trial motions, which were denied following a hearing. This timely appeal followed.

¶ 9 Appellant raises eight issues for our consideration.

I. 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[?]

II. Was the evidence insufficient to convict Mr. Shamberger of the three forgery charges[?]

III. Did the trial court err in his instruction to the jury on the charge of forgery[?]

IV. 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[?]

V. Was the evidence insufficient to convict Mr. Shamberger of the two misdemeanor one theft charges, to wit: property taken from the person[?]

VI. Was trial counsel ineffective for failing to object to the trial courts [sic] instruction to the jury which ignored an element of the theft offense, to wit: items were taken from the person[?]

VII. 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 [sic] person[?]

VIII. 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.) Obviously, we need not reach an issue regarding sentencing if we were to find in Appellant's favor on any of his other claims. Thus, we will address the other issues first, albeit not in the order presented by Appellant.

¶ 10 We first address Appellant's claims regarding the sufficiency of the evidence, the second and fourth issues raised by Appellant, because if he succeeds on these claims, we need not address his other contentions. In reviewing the sufficiency of the evidence, this Court must consider "whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined all the elements of the crime have been established beyond a reasonable doubt." Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995). ¶ 11 Appellant argues that the evidence was insufficient to support his theft convictions because:

In order to convict the defendant of theft, and attempted theft of property from the person (misdemeanors of the first degree no matter what the value of the property), the Commonwealth is required to prove that the items taken were "from the person". The evidence presented fails to sufficiently meet this burden.

(Appellant's Brief, at 14.) Appellant's argument is misplaced. Appellant was charged with theft by unlawful taking. According to the Crimes Code, theft by unlawful taking or disposition is defined as:

(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). The evidence set forth above, if believed by the jury, clearly was sufficient to establish that Appellant took and attempted to take property of others with the intent to deprive them thereof.

¶ 12 Whether the property was taken "from the person" is not, as Appellant argues, an element of this offense under the Crimes Code. See Commonwealth v. Sparks, 342 Pa.Super. 202, 211, 492 A.2d 720, 724 (1985)

. Instead, this is a factor in grading the offense for sentencing purposes pursuant to 18 Pa.C.S.A. § 3903. Appellant's argument regarding the propriety of the grading will be considered below, but it is clear that his challenge to the sufficiency of the evidence supporting his theft convictions is meritless.

¶ 13 Appellant similarly argues that the evidence was insufficient to support his convictions for forgery. Under the Crimes Code, a person commits forgery if, "with intent to defraud or injure anyone" he "makes,...