Commonwealth v. Clayton

Decision Date22 September 1980
Docket Number1816
Citation24 Pa. D. & C.3d 243,5 Phila. 269
PartiesCommonwealth of Pennsylvania v. Denise Clayton
CourtPennsylvania Commonwealth Court

(1) Prior convictions for retail theft are not an element of the crime of retail theft, but are solely concerned with the grading of the offense

(2) The introduction of evidence establishing that a defendant has prior convictions for retail theft before a defendant has been adjudged guilty of the charged offense is so prejudicial as to require the granting of a new trial even though said evidence was introduced by stipulation.

Jeffrey Kolansky, Esquire, for Commonwealth

Lawrence R. Watson, II, Esquire, for Defendant

[5 Phila. 270] OPINION


On July 2, 1980, Denise, Clayton, a/k/a Denise Fryer, was tried by this Court without a jury. She was found guilty of violating 18 CPSA 3929 (Retail Theft) and sentence was deferred until October 9, 1980. No post-trial motions were filed on her behalf. Nevertheless, upon reflection and analysis, this Court is constrained to, and hereby does, grant a new trial sua sponte for reasons stated below.

It is a basic tenet of the law that a defendant is presumed innocent until proven guilty and, pursuant to this presumption, that a defendant's past convictions, with limited exceptions not here applicable cannot be introduced prior to or at a trial as this could prejudice the jury (or the judge sitting as a jury). Commonwealth v. Faison. 437 Pa. 432, 264 A.2d 394 (1970). By way of stipulation with defense counsel prior to the start of the trial proper, the Commonwealth in the instant case introduced before the Court evidence of two prior retail theft convictions of the defendant. (N.T. 3-7) Since that evidence had no bearing on guilt, not being an element of the offense but only information useful for grading purposes in the event of a conviction, its introduction was so prejudicial as to warrant the granting of a new trial. [1] See, Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972).

[5 Phila. 271] The offense for which this defendant was charged is defined as follows:

§ 3929. Retail theft

(a) Offense defined. -- A person is guilty of a retail theft if he:

(1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof;

(2) alters, transfers or removes any label, price tag marketing, indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale in a store or other retail mercantile establishment and attempts to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of the full retail value of such merchandise;

(3) transfers any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the full retail value thereof; or

(4) under-rings with the intention of depriving the merchant of the full retail value of the merchandise.

(b) Grading. --

(1) Retail theft constitutes a:

(I) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.

[5 Phila. 272] (II) Misdemeanor of the second degree when the offense is a second offense and the value of the merchandise is less than $150.

(III) Misdemeanor of the first degree when the offense is a first or second offense and the value of the merchandise is $150 or more.

(IV) Felony of the third degree when the offense is a third or subsequent offense, regardless of the value of the merchandise.

(2) Amounts involved in retail thefts committed pursuant to one scheme or course of conduct, whether from the same store or retail mercantile establishment or several stores or retail mercantile establishments, may be aggregated in determining the grade of the offense.

18 CPSA 3929(a)(1)(2)(3) and (4) are substantive crimes; that is, 18 CPSA 3929(a)(1)(2)(3) and (4) define the elements of the crime of retail theft while 18 CPSA 3929(b)(1)(I)(II)(III)(IV) and (2) are concerned with the grading of the offense. It is not necessary for the trier of fact to know the grading of the substantive offense in order to convict or acquit the defendant and jurors are instructed to ignore the penalties in their deliberations, Pennsylvania Suggested Standard Jury Instructions (Crim), 2.06(1).

Further, 18 CPSA 3929(g) provides that before permitting a defendant to plead guilty to or be tried before him as the summary offense of retail theft, the presiding district justice shall run a " records check" to determine if this is defendant's first offense. If it is a first offense, the trial (or plea) would proceed with no prejudice to the defendant -- in fact the status of the defendant might even be enhanced. If, however, the " records check" determined the offense not to be the defendant's first, the district justice would then " hold for court" (or preparation of bills of information) so that in either event he would not be the trier [5 Phila. 273] of fact with prejudicial knowledge of prior offenses. 18 CPSA 3929(g) states that, " The district justice shall use the information obtained (record of prior retail theft offenses) solely for the purpose of grading the offense pursuant to subsection (b)."

A converse situation was presented in the case of Commonwealth v. Dickinson, 70 Berks L.J. 105 (1978). There the defendant argued that since the jury had not been presented with any evidence of his prior retail theft convictions (even though the bill(s) of information alleged that this was in excess of his first offense) he could not be sentenced to the " higher" grading of 18 CPSA 3929 since the jury did not convict him of the higher grade but " merely" convicted him of retail theft (presumably " generally" ). That court correctly saw the issue as being " . . . whether or not prior conviction is an essential element (emphasis added) of retail theft when the information alleges a prior conviction . . ." at page 106. The Dickinson case, supra, citing the opinion of Judge LOUIS LEVINTHAL in Commonwealth v. Boyer, 37 D. & C. 81 (Q.S. of Phila. Co., Pa. 1940) as well as Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), McDonald v. Massachusetts, 180 U.S. 311, 313 (1901) and Graham v. West Virginia, 224 U.S. 616, 624 (1912) held that proof of prior conviction at trial was not an essential element of the offense.

In Koczwara, supra, a liquor code violation case (with a " second offender" provision), Mr. Justice COHEN, speaking for the majority, enumerates the correct procedure to be followed as:

(1) The indictment must contain an averment of such conviction and sentence.

(2) Where there is no averment of a former conviction in the information, the Grand Jury may of its own motion, make such presentment in the indictment.

[5 Phila. 274] (3) In the trial of the substantive offense, the Commonwealth may not submit evidence of the former conviction, unless the former conviction may be put in evidence to affect his credibility, or the defendant has put his character or reputation in evidence, and that the original indictment, with the averment of former conviction, should not be sent out to the jury, but that an exact copy, with the exception of such averment, may be.

(4) After conviction on the substantive averment, the District Attorney should present in writing, a suggestion to show cause why the enlarged sentence should not be imposed, to which the defendant may answer. Id., at 587.

This Rule is in accord with English Common Law wherein it was established by statute that, although the fact was alleged in the indictment, the evidence of the former conviction should not be given to the jury until they had found their verdict on the charge of the crime. The Act of 6 and 7 Will. IV, c 111, provided that it should " not be lawful on the trial of any person for any such subsequent felony to charge the jury concerning such previous conviction until after ...

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