Com. v. Goodermuth, J.
2110 MDA 2015
| Pa. Super. Ct. | Aug 1, 2016Background
- March 10, 2015: Appellant Jennifer Goodermuth and another person pumped gasoline at a Turkey Hill and drove off without paying; charged with retail theft, criminal conspiracy to commit retail theft, and receiving stolen property.
- Parties stipulated to the police report, affidavit of probable cause, and criminal complaint at a non-jury trial; the sole contested question was grading (whether prior convictions made the current offense a third‑offense).
- Appellant had prior convictions: retail theft (2011) and criminal conspiracy to commit retail theft (2014).
- The Commonwealth charged the current retail theft as a third offense under 18 Pa.C.S. § 3929; Appellant argued the conspiracy conviction should not count because conspiracy is an inchoate offense not listed in § 3929(b.1) and has different elements.
- Trial court treated the conspiracy conviction as a prior retail theft offense, graded the current retail theft as a third‑offense felony (third degree), and sentenced Appellant to concurrent probation terms and restitution.
- Superior Court affirmed, holding the conspiracy conviction counts for grading under § 3929(b.1) and under § 905 (grading of inchoate offenses).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior conviction for conspiracy to commit retail theft counts as a prior retail‑theft offense for grading under 18 Pa.C.S. § 3929(b.1) | Commonwealth: conspiracy is the same grade as the object offense and thus counts as a prior offense | Goodermuth: conspiracy is an inchoate offense not listed in § 3929(b.1) and has different elements, so it should not count | Conspiracy to commit retail theft is substantially similar and counts as a prior offense; current retail theft is a third‑offense felony (3rd degree) |
Key Cases Cited
- Commonwealth v. Gibson, 668 A.2d 552 (Pa. Super. 1995) (conspiracy penalty is based on grade of underlying offense; prior convictions must be alleged to enhance sentence)
- Commonwealth v. Perkins, 448 A.2d 70 (Pa. Super. 1982) (conspiracy is same grade as the object offense)
- Commonwealth v. Graeff, 13 A.3d 516 (Pa. Super. 2011) (standard of review for legality of sentence; plenary review)