Com. v. Polhemus, M., 2817 EDA 2015

Mathias Polhemus was charged with two counts of retail theft arising from separate incidents on March 23 and March 25, 2014; trial was by jury and Polhemus briefly proceeded pro se before accepting standby counsel.
March 25 facts: cashier observed Polhemus leave with two bottles of beer protruding from his pockets; he briefly left in a vehicle, returned, attempted to return and then pay for the bottles; manager refused payment and returned bottles to stock.
March 23 facts: loss-prevention review of surveillance identified Polhemus taking beer and other items on that earlier date.
On the morning of trial Polhemus moved to sever the two incidents; the trial court denied severance and the cases were tried together; the jury convicted on all counts.
Polhemus requested a jury instruction defining “deprive” per 18 Pa.C.S. § 3901 (which includes “permanently”); the trial court declined to give that statutory definition and instead used the Pennsylvania Suggested Standard Criminal Jury Instructions language.
Post-conviction, Polhemus appealed arguing (1) the court abused discretion by denying severance and (2) the court erred by refusing the § 3901 definition of “deprive.” The Superior Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether joinder/severance was improper	Commonwealth: joinder permissible; evidence from each incident admissible for identity, intent, absence of mistake	Polhemus: trying both together prejudiced him because his entire defense to Mar.25 was mistake	Denied—joinder proper; evidence of each incident admissible for non-character purposes; jury capable of separating evidence; no undue prejudice
Whether jury should have been instructed with § 3901 definition of “deprive” (including “permanently”)	Polhemus: statutory definition clarifies intent element and “permanently” is essential to rebut mistake defense	Commonwealth/Trial court: standard jury instruction sufficiently conveyed intent-to-deprive element; § 3901 definition not specifically required	Affirmed—trial court did not commit reversible error; standard instruction adequately conveyed the required intent-to-deprive (including permanency)

Commonwealth v. Dozzo, 991 A.2d 898 (Pa. Super. 2010) (standard for severance review; prejudice burden on defendant)
Commonwealth v. Boyle, 733 A.2d 633 (Pa. Super. 1999) (three-part test for admissibility and severance: admissibility, separability, prejudice)
Commonwealth v. Collins, 703 A.2d 418 (Pa. 1997) (distinct offenses separable by jury when distinguishable in time/space)
Commonwealth v. Newman, 598 A.2d 275 (Pa. 1991) (meaning of undue prejudice under joinder rules)
Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. 2013) (standard of review for jury charge challenges)
Commonwealth v. Martin, 446 A.2d 965 (Pa. Super. 1982) (intent-to-deprive is an essential element of retail theft)
Commonwealth v. Lipford, 331 A.2d 889 (Pa. Super. 1974) (intent to permanently deprive relevant to theft offenses)