Commonwealth v. Holzlein

Appellant’s claim respect With imposing a sen

that the trial court erred substantially greater than that recom

tence note, presentence report,

mended in the support

initially, Appellant has failed to any authority. Nonethe

his assertion with

less, that such we do not hesitate to conclude allegation present fails to a substantial Sentencing

question that the Code has been stated,

compromised. previously matters are left to the discretion of the just sentence is

trial court. recommended more; nothing the trial court was reject accept

free to the same without

abusing its discretion.

Judgment of sentence affirmed. Pennsylvania,

COMMONWEALTH

Appellee, HOLZLEIN,

Timothy Appellant. Pennsylvania.

Superior 1,May 1997.

Submitted Dec.

Filed

849 jury acquitted A court. him of but convicted of the theft counts conspiracy, as receiving property and tampering reports and as the false well charges. appeal con

Appellant’s issue on first to of the case court’s certification cerns the juvenile finding is that a criminal court. juve within the not amenable to treatment where system nile will be disturbed Chelak, Milford, appellant. Gregory H. for gross discretion is established. abuse of 337, Moss, 543 518 Pa. Guccini, Atty., Mil- Steven R. Asst. Dist. (1988). Act, 514, 42 Com., The Juvenile ford, 516 appellee. for 6301-6365, provides §§ a list Pa.C.S.A. POPOVICH, JJ., Before and BECK by the trial that must be considered factors *, Judge. MONTEMURO Senior amenability assessing court in an offender’s juvenile system. in the See to treatment BECK, Judge. 6355(a)(4). Pa.C.S.A. address, alia, appeal inter two of the court’s detailed and Upon review appellant preserved his issues: whether transferring to the case comprehensive order appellate weight of the evidence claim for light appellant’s his- criminal court and correctly and whether the trial court review by the tory, no abuse of discretion we find graded appellant’s offenses under the Crimes conclude that the transfer was trial court and Code. Potts, appropriate. See Commonwealth Appellant convicted of 956, appeal de- 673 A.2d property, conspiracy and offenses. related nied, Pa. 681 A.2d 1342 asserting In addition to that his conviction argues that the ver Appellant next against weight of the evidence against weight of evidence. dict was illegal, he claims the his sentence was raise this claim before the Appellant did not transferring court erred in his case from post-sentence form of a trial court in the juvenile to adult court. find no merit We motion, it in his Pa. R.A.P. but he did include appellant’s challenges and we there- 1925(b) However, the trial court Statement. judgment fore affirm the of sentence. opinion. in its not address the issue did Appellant, a minor at the time who was preserved has question is whether issue, joined he committed the crimes at the issue for review. eight guns from with another man and stole the 1994 amendments neighbor. years after Since the home of a Two Procedure, police Rules Criminal were committed the crimes motions, post-trial now known filing charged appellant. Based on a confession motions, optional. long is post-sentence facts im- appellant’s from cohort and other in the preserved before or a criminal as an issue appellant, police filed plicating trial, litigant need not return multiple course of complaint charging appellant with again request relief after theft, court and conspiracy, receiving stolen the trial counts of Pa. R.Crim. See hindering tampering conviction apprehension, Rule of amended P. 1410. The enactment reports.1 and false The Com- problems spawned a series of re sought granted a 1410 has then and was monwealth typically are not juvenile garding those issues that from transfer of case * accidentally partner and re- assigned Superior shot himself Justice Court. Retired young men told quired treatment. The medical arrest but after the theft of 1. Prior to his police unknown hospital personnel and that an weapons, appellant partner crime and his shooting. committed the assailant shooting. guns target used at least one of the evidence,” trial, during including weight before

raised Widmer court weight claim that the verdict is claim appellate held review the evidence. Commonwealth v. See Clin- proper. at 212. Id. at 138 - ton, (1996) 683 A.2d 1236 presents ease at bar different (listing cases that hold that “a defendant Widmer, problem procedurally. Unlike always post7sentence must file a motion in this the trial did not address case court preserve assailing order to a claim a verdict Therefore, appellant’s weight despite claim. evidence”). against weight' as See appellant exactly the fact that here did what Egan, also Commonwealth v. 451 is, did, in that Widmer raise (1996) (specific 679 A.2d 237 discretion- for the first in claim time his Rule ary involving claim trial court’s 1925(b) Statement, we are without the trial alleged failure to state reasons for the sen- judge’s under assessment the claim. Our may tence on the record be addressed for the holding standing of the in is that an Widmer court); by appellate first time Common- appellate permitted court is not to review a Jarvis, wealth v. 444 663 A.2d weight (1995) of the evidence on a cold claim based (general regarding 790 claim discre- Brown, record. See also Commonwealth tionary aspects must of sentence be made to (1994) (appellate 538 Pa. despite the trial court in first 1177 instance court is review trial post-trial proce- amendments authorized to to dure). weight court’s assessment of claim and is powerless weight on to consider claim its Recently supreme our court considered own). that We conclude we are unauthorized preservation weight of a of the evidence to address claim.2 Widmer, claim. (1997), Pa. his sen Appellant’s final claim is that post-sentence a raising failed to file motion a and con property tences for claim, weight of evidence but raised illegal. He con spiracy are that the asserts 1925(b) issue in his Rule Statement. The should have as first victions been opinion court issue in trial addressed the its degree degree and not third misdemeanors and concluded that the verdict was indeed grading felonies. The theft offenses is weight of the evidence. None- statute, governed perti provides, in which theless, panel ap- a court of this found that part: nent pellant’s claim not be since could considered (a) Felony degree. of the second —Theft properly preserved the issue was not below. felony degree a constitutes of the second fact that court the trial addressed the during if is the offense committed a opinion in no issue its made difference to the disaster, a or manmade natural disaster panel longer since court no had the trial disaster_ a war-caused jurisdiction grant deny or the motion for a (a.l) Felony degree. new trial. —Ex- (a), in cept provided subsection theft supreme disagreed su- court with the a if constitutes the third perior court its and reversed order. While if $2,000, or the amount exceeds weight recognizing that firearm, automobile, is a property stolen analyzed in the claim must be first instance motorcycle airplane, motorboat or or court, by the trial court found Widmer vehicle, motor-propelled other or judge since the addressed claim that proper- case of opinion, appropriate his it was ty, if the receiver in the business of appellate court the claim to address as well. property. Noting Supe- that need for “there was no (b) grades. sub- rior record make Other not within review cold —Theft (a.l) (a) section, consti- concerning an initial section determination motion, that, 1, 1998, January sentencing, by 2. We observe or written or after effective oral way newly promulgated procedure post-sentence rule of criminal motion. Failure to do so explicitly requires weight party raise a See results in Pa.R.Crim.P. 1124A and waiver. sentencing, by way evidence claim before thereto. either Comment Noting firearms.3 degree, 15 inches are considered tutes a misdemeanor of the first regarding only testimony except if taken that the was not threat, testimony person Dodge from a Common- from the rifle,” fiduciary obligation, who mentioned breach of and: wealth witness “30/30 courtfs] concluded that “the lower the court (1) more the amount involvedwas $50 felony of the the offense as a grad[ing of] but less than the offense consti- $200 the rifle that] on the fact third [based of the second tutes a misdemeanor upheld.” Id. a firearm ... cannot be degree; or 197,599 A.2d at 672. (2) than the amount involved was less the offense constitutes a misde- Dodge $50 court on to consider went degree. meanor of the third grading of the offense could be whether basis, is, proof that upheld on another (West 1983, amended 18 Pa.C.S.A. in business of appellant the had been the 29,1990). Nov. property. Appar- buying selling stolen and judge trial the In this case the found that ently, on this alternative the trial court relied therefore, and, weapons stolen were firearms Rejecting opinion. ground in its Rule 1925 appellant’s offenses were third felo- Dodge court noted that argument, the Appellant argues receiving that his nies. was question of whether defendant property conspiracy can stolen and offenses buying selling engaged in business of and only if be considered third felonies property an issue that must be stolen was in the Commonwealth established he was not be deter- by jury, decided and could buying proper- and business stolen by at Id. mined the court so, ty. Since the Commonwealth failed to do argues appellant, grade the offense was erro- judge in this case found that the disagree. and, therefore, neous. We weapons stolen were firearms felony grade third-degree an offense Dodge, The case of Commonwealth v. arguments appropriate. response In (1991), sheds 1925(b) by in Rule appellant asserted his light appellant on this issue. Statement, trial court framed the issue property was convicted of stolen for this court as follows: part in his the theft of some rifles. One of grading in question presented the issues that ease was the of the is whether Receiv- degree felo- appellant’s ing Property offense. This court framed the is a third Stolen Dodge in involved in ny only issue follows: when the defendant is selling stolen the business [Ajppellant im- contends that sentence degree felony property or is it also a third posed by illegal the trial court was since one of property falls under when the property not meet defi- stolen does in categories property listed in nition of a firearm as contained 3903(a.l)? § Firearms Act of Uniform [“the Act”]. that Op. Appellant at 7. concedes Trial Court 3903(a.l) § to the issue offense consider- is relevant Id. at 671. After However, ation, he does not grade in this case. the court held that the definition of Act, in manner as the the issue the same firearm as set forth in the 18 Pa.C.S.A. frame consideration of determining § trial court. After careful must be used law, con- the relevant case statute and grade of the theft offense. Under any charge involves that § barrels of less than clude with inches, decided, any pistol, length Dodge § less than 16 6102 also barrel 3. At the time revolver, length “any shotgun pistol revolver with with an overall defined as a firearm rifle shotgun any length than 12 inches of a [and] a barrel of less than 26 inches. The barrel of less measuring a barrel of less than 24 inches....” with be determined firearm shall currently firearm as follows: defines a statute of the of the barrel to the face from the muzzle action, cylinder, whichever is bolt or length closest Any pistol with a barrel less or revolver inches, applicable. shotgun any a barrel with than 15 § C.S.A. 6102. length rifle with a 18 Pa. than 18 inches or less merit, he is not argument is without property must be find his as the stolen firearm's entitled to relief. degree felony. graded as a third Judgment sentence affirmed. statutory plain reading provision of the pro- prompts such result. Section POPOVICH, J., Concurring files a vides that “theft constitutes Dissenting Opinion. degree if exceeds third the amount involved $2,000, if is a firearm POPOVICH, Judge, concurring and ... or in the case of theft dissenting. receiver is in the business of challenges appeal, the On property.” 18 Pa. (6 years months to 3 judgment of sentence 3903(a.l) (emphasis supplied). De- C.S.A. 2-year imprisonment, to be followed language spite the alternative nature of grounds on the trial period probation) statute, ignore the asks'us to transferring his its discretion court abused provision pro- first two clauses of the court, the verdict was case to However, ap- if directly the third. ceeds weight the evidence and the correct, analysis there would pellant’s Majori- join I illegal. sentence Dodge court to have be no reason for the meritless. ty finding the first two claims meaning “fire- considered the of the term However, portion of the I dissent to that only charge at issue arm” since holding legal. ruling the sentence receiving property. case was stolen August of indicate that in The facts the appellant Randy the and Zak1 entered 3903(a.l) § and the We read both (Mr.. Story) neighbor home a and stole of 3903(a.l) § Dodge interpretation court’s of Story from eight weapons was absent while involving large offense a mean that theft appellant removed the premises. The the (over $2,000.00) money a firearm of or sum his home. weapons to a wooded area near (such 6102) (as § a by or a vehicle as defined theft, appel- while the Two weeks after graded airplane) or an as a third car target shooting near the lant others were and Further, regardless of the degree felony. home, accidently Zak shot himself stolen, type person convict value or of item weapons. transport- one of the Prior to with receiving property will have her ed of stolen hospital, appellant, one ing Zak to the felony if it offense as a third agreed Zak to fabricate Alexander Gil and is, “fence,” that is established that she is a by shooting committed story that the in of and engaged the business assailant, found on the and Zak was unknown interpretation is not property. This stolen by appellant Gil and the side of the road .statute, only logical given language of the This false re- for treatment. before taken Dodge. reasoning in comports it also police. port communicated to theft, record, police recov- years after the we find Two Upon review of in in a crime weapons used finding that the ered one the trial court’s support for Middletown, The same week as New York. firearms and so weapons in this case were incident, police were no- for a third the Middletown appellant punishment exposed by weapons turned in a citizen Indeed, of two felony.4 appellant does not tified gun shop, both of which matched to a local trial court’s conclusion challenge the even numbers of the stolen firearms; re the identification he instead guns were turned weapons weapons. in Because reading the statute his on a limited of lies police knew Story’s home and near sentence. Because effort to reduce his depends simply concurring the court. The answer filed mined in a statement 4. We observe that of barrel. on the measurement Judge Kelly suggested that the issue particular weapon a fire- constitutes whether a jury. appellant Randy § be decided Zak testified under 6102 should arm arising out of provides pleaded guilty offenses disagree. clear and to various The statute We appellant. charged against the objectively incidents deter- the same simple can be definitions that Story prior upon the Commonwealth. that Zak had lived with for a time police shooting, Stauffer, to the theft and the

spoke gra- purposes with Zak. He confessed to the theft for the “Value” implicated A interview Holzlein. second offenses must be ascertained dation of theft falsity reported Zak revealed the provisions of applicable with reference to the anonymous shooter. which read in relevant 18 Pa.C.S.A part: Thereafter, appellant being age under incidents, (a.l) eighteen degree. at the time of the Felony of the third —Ex-

juvenile complaint is- petition (a), was filed. cept provided subsection consisting eight sued counts of .theft of degree if felony of the third constitutes a weapons; conspiracy; two counts of criminal $2,000, or if exceeds the amount involved receiving prop- and one count each of firearm, automo- property stolen is a erty, hindering apprehension prosecution, bile, motorcycle, airplane, motorboat tampering fabricating physical with or evi- vehicle, in the motor-propelled other reports dence and false to law enforcement case of theft peti- authorities. Once Commonwealth’s in the business of if the receiver is tion to have the case transferred to criminal property. granted, jury court was trial ensued (b) grades. not within Other —Theft appellant guilty which the was found not (a) (a.l) section, con- of this subsection the first nine counts of the information but degree, of the first stitutes a misdemeanor guilty charges. other After sentenc- taken except that if the was not ing,2 appeal filed a direct to this threat, person byor or in breach from the raising I three issues. find merit in fiduciary obligation, and: only. claim (1) the amount involvedwas or more $50 contends that his sentences constitutes a less than the offense but $200 conspiracy for criminal degree; or of the second misdemeanor property illegal grad each was because (2) amount involved was less than felony third-degree ed a of the of instead offense constitutes a misdemeanor $50 first-degree misdemeanors.3 Because the il degree. the third of legality of a is a issue sentence nonwaivable (c) amount involved Valuation. —The Court, subject sponte to sua review this ascertained as follows: a theft shall be Ford, Pa.Super. see Commonwealth v. 315 (1) Except specified as otherwise 281, 1281, 1289 (1988), may 461 11 A.2d n. we section, means the market value of value propriety review the of the sentence ex place time and of the property at the first, amining, gradation of the crime, satisfactorily ifor such cannot be charge. property stolen ascertained, replacement cost of of the law, Pennsylvania gradation of theft Under time after the property within a reasonable upon offenses is based the value of the stolen crime. § property. 3903. The 18 Pa.C.S.A burden to establish the value of stolen property ^[*] ‡ ^[*] ‡ ^[*] 11., following: tively Restitution in the to Counts 10 and 2. The sentence consisted of the $3,000. of amount Conspiracy: Pay Count 10—Criminal the cost fine, proceedings, 4 and 15. $500 and incarcera- Record Nos. of court period months nor tion for a not less than six years. felony third-degree, more than three In the case of a of Receiving Pay Property: Count Stolen may imprisonment for person sentenced to be 11— fine, proceedings, $500 incar- cost court of years. 18 Pa.C.S.A. not more than seven period not less than six months ceration for contrast, 1103(3) person (Supp.1997). § In concurrently years more than three to run nor first-degree of a misdemeanor of the convicted to Count 10. imprisonment of not may receive a sentence 12, 13, Hindering Apprehen- Counts and 14— third-degree years, than five whereas more Evidence, sion, Tampering and False Re- potential sentence of not carries a misdemeanor ports: Pay proceedings the cost of court imprisonment. year 18 Pa.C.S.A. than one more probation years, be served for two each to other, 1104(1), (3). § concurrently, but consecu- one with the 854

(3) 357, 366-67, 622, A.2d Pa.Super. 522 625 the value cannot When (1987). satisfactorily proof, pursuant be ascertained such In the absence of n ] (1) in paragraph the standards set forth value compelled presume [the] are that of this subsection its value shall be deemed than is less Common- $50. , less than be an amount 559, $50. Pa.Super. wealth 300 v. Walentoski 1300, 2, n. 2 608, 565 n. 1303 amended, 446 November P.L. Thus-, requires 154, 1,18 § [the that § No. Pa.C.S.A. 3903. defen- graded thirddegree as a be dant’s] Pa.Super. In offense Commonwealth misdemeanor. (1991), 189, 599 A.2d 668 the defendant claimed, alia, imposed inter the trial court (Em- A.2d at 672 illegal sentence of three and to sev- one-half added). phasis years imprisonment en for crime of re- bar, Information At albeit the Criminal ceiving felony third- stolen filed at Counts I-VIII degree. agreed We and remanded for resen- eight stolen listed values for each so, doing tencing. In we wrote: weapons,4 court, in opinion, its 1925 states lower on instructing jury In [Count provided that the Commonwealth over- Prop- Receiving Stolen ]the crime of XI— whelming to show erty,; read [the court] buying selling “in the business Jury Suggested In- Criminal Standard property” meaning within the of 18 Paragraph number six struction 15.3925A. 3903(a). Pa.C.S.A. reads, of that as follows: instruction Sparks, 492 A.2d 720 (1985), guilty our Court held that the issue If defendant you find the

whether the was “in the busi- property, you defendant property” ness go on to whether should then consider jury question was a rather than a the business defendant for question the court at property. If buying or case, beyond a present you In the lower court did are satisfied reasonable business, although your jury this issue to the doubt he was not submit testimony on presented say this issue. At so. verdict should sentencing, the lower court the of- Believing had not that the Commonwealth as a since fense presented any evidence to show the defen- firearm the rifle was a under the statute. dant was in the business of have determined that the defini- Since we selling trial property, [the court] tion of a firearm under Fire- Uniform paragraph did not six instruc- read of applies grading Act to theft of- [of] arms Consequently, jury jury. tion to the fenses, the court’s cannot lower conclusion did not that issue. address of upheld. question appel- be whether (Emphasis at 9 Opinion, Trial Court 12/16/96 of buying in the business or sell- lant was added). ing question not have should here to the trial court failed at the time been addressed of whether the submit the issue of alleged a val- Although the Commonwealth buying selling “in business of information, in the there ue rifles of jury. Additionally, property” to the at evidence trial as to was no offered regarding no was offered at evidence and the issue was value value of length of the weapons, the value jury. or barrel not submitted to the Such evidence issue submitted to the nor was the part is the Commonwealth’s burden value of of Hanes, Rather, jury. until the court waited sentenc- proof. eight weapons Story's guilty of stolen from resi- jury 4. not on these returned verdicts appellant. counts' RecordNo.il. N.T. 205. No dence Zak and the Further, Court weapons of other record sent to this indicates mention official Trooper Thomas Kobeski's testi- trial consists mony identifying, otherwise. value, all without reference to holding Majority’s appellant. The ing grade the felonies of the offenses my contrary prompts dissent.5 third-degree weapons because the “firearms” under the statute. This was error. Id. Majority ignores requirement that strictly give

penal statutes be construed to provision

effect to each and not be read so clause,

that a sentence or word is rendered

superfluous, insignificant. P.L.E. void precept § Applying Law 6. such a Criminal COMMONWEALTH here, disjunctive provisions nature of the 3903(a.l) permit pro- a conviction Section BELL, Larry Appellant. L. vided one of the elements set forth therein judice, proven. has been Sub the record Pennsylvania. Superior Court (as “value,” discloses none of the elements “in length,” “barrel or that Holzlein was July 1997. Submitted firearms) buying selling” business of Filed Jan. established. 26, 1998. Reargument Denied March 1) explicate, prosecution To failed to $2,000

prove the stolen items exceeded 2) 4, supra;

value. note See the Common-

wealth did not introduce firearms, any length” “barrel of the stolen precedent proving

which is a one condition

guilty involving of a crime a “firearm”. 3)

Dodge, supra; and the trial court admitted jury question

it withheld from the

whether the accused was “in the business of property.” Trial See Opinion, at 9. 12/16/96

Accordingly, reading the facts

backdrop applicable (e.g., Dodge, law

supra),- imposition for a sentence under Section

3903(a.l) unjustified by absence “value,”

evidence reflective of the “barrel

length” “in or involvement the business of stolen” firearms judgment property," as fact that as well I would vacate the of sentence and conspiracy to allow the criminal length remand receiving were not the issues of value and barrel grad- convictions to be jury. presented Commonwealth v. degree ed third misdemeanors and allow (1991). Pa.Super. 599 A.2d impose legal sentence commensurate court to sentencing is- framed Albeit Opin- with its ion, scheme. Trial Court regrade charges misdemeanors of sue 9-10; Slick, Commonwealth v. 12/16/96 first and not misdemeanors (1994). 639 A.2d authority rectify degree, an third this Court’s conspiracy criminal It is settled law that principles illegal of waiver sentence exceeds graded higher one no than the crime with which punish- sponte sua review of the and allows for a conspiring to commit. 18 Pa. is convicted Ford, imposed. Commonwealth v. ment 905(a). Thus, conspiracy C.S.A. 1289 n. 11 be a third misde- this case should justify vacating applicable law The record and degree with and not a meanor remanding the judgment of sentence jury’s that the the absence of the determination remedy injustice. Dodge, supra. case to was "in the business of

Case Details

Case Name: Commonwealth v. Holzlein

Court Name: Superior Court of Pennsylvania

Date Published: Dec 30, 1997

Citation: 706 A.2d 848

Court Abbreviation: Pa. Super. Ct.