Com. v. Nigro, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
AARON NIGRO : No. 1043 WDA 2015
Appeal from the Order entered on June 24, 2015
in the Court of Common Pleas of Westmoreland County,
Criminal Division, No(s): CP-65-CR-0000383-2014
BEFORE: STABILE, DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 24, 2016
The Commonwealth of Pennsylvania appeals from the Order granting
the Petition for habeas corpus relief filed by the defendant, Aaron Nigro
(“Nigro”). We reverse and remand for further proceedings.
On May 7, 2013, the Commonwealth filed a Criminal Complaint against
Nigro charging him with theft by unlawful taking—movable property, as a
second-degree felony. See 18 Pa.C.S.A. § 3921(a). The Criminal Complaint
alleged that Nigro “did unlawfully take or exercise unlawful control over
moveable property, namely LED Lights valued at $5000.00, belonging to
Genesis Security Integrations (“Genesis”), with the intent to deprive the
owner thereof ….” Criminal Complaint, 5/7/13, at 2.
The Affidavit of Probable Cause asserted that upon termination of his
employment with Genesis, Nigro appeared at a UPS facility and took
possession of a package of LED lights, valued at $5,000.00. Affidavit of
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Probable Cause, 5/7/13. The package was addressed to Nigro and Genesis.
Id. The Affidavit further stated that, at the time he took possession of the
package, Nigro had been “advised … of his termination with Genesis [] and
that he is to have no further dealings with the company.” Id.
Subsequently, the Commonwealth filed its Criminal Information
against Nigro, charging him with theft by unlawful taking-moveable property
(as a second-degree felony), and theft by deception (as a third-degree
felony).1 A preliminary hearing was conducted before a magistrate on
January 21, 2014. After several continuances, on April 10, 2015, Nigro filed
a Petition for habeas corpus relief. After a hearing, the trial court granted
Nigro’s Petition. On June 24, 2015, the trial court entered an Order reducing
Nigro’s charges of theft by unlawful taking and theft by deception to third-
degree misdemeanors. Thereafter, the Commonwealth filed the instant
appeal, followed by a court-ordered Pa.R.A.P. Concise Statement of matters
complained of on appeal.2 The Commonwealth additionally certified that the
trial court’s decision would substantially handicap its ability to prosecute
Nigro.
The Commonwealth now presents the following claims for our review:
1. Whether the [trial c]ourt erred in granting pre-trial habeas
corpus relief regarding a non-essential element of theft offenses
by ordering the reduction of the grade of the offenses from
1
See 18 Pa.C.S.A. § 3922(a)(1).
2
Rather than filing an Opinion, the trial court directed our attention to the
pages in the Notes of Testimony where it explained its decision.
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felonies of the third degree to misdemeanors of the third
degree[?]
2. Whether the Commonwealth established a prima facie case
regarding the value of the stolen property[?]
Brief for the Commonwealth at 4.
The Commonwealth first claims that the trial court improperly granted
habeas corpus relief to Nigro. Id. at 8. The Commonwealth argues that the
preliminary hearing stage of the proceedings, it need not prove guilt beyond
a reasonable doubt. Id. Rather, it must produce prima facie evidence of
the crime charged, and whether the evidence “establishes sufficient probable
cause to warrant the belief that the accused committed the offense.” Id.
According to the Commonwealth, the value of the allegedly stolen property
is not a material element of a theft offense. Id. at 9. Therefore, the
Commonwealth argues, the absence of such evidence is not a proper subject
matter for pre-trial habeas corpus relief. Id.
As this Court has explained,
[t]he decision to grant or deny a petition for writ of habeas
corpus will be reversed on appeal only for a manifest abuse of
discretion. It is settled that a petition for writ of habeas corpus
is the proper means for testing a pre-trial finding that the
Commonwealth has sufficient evidence to establish a prima facie
case. Although a habeas corpus hearing is similar to a
preliminary hearing, in a habeas corpus proceeding the
Commonwealth has the opportunity to present additional
evidence to establish that the defendant has committed the
elements of the offense charged….
A prima facie case consists of evidence, read in the light
most favorable to the Commonwealth, that sufficiently
establishes both the commission of a crime and that the accused
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is probably the perpetrator of that crime. The Commonwealth
need not prove the defendant’s guilt beyond a reasonable doubt.
Rather, the Commonwealth must show sufficient probable cause
that the defendant committed the offense, and the evidence
should be such that if presented at trial, and accepted as true,
the judge would be warranted in allowing the case to go to the
jury.
Commonwealth v. Black, 108 A.3d 70, 77 (Pa. Super. 2015) (quoting
Commonwealth v. Fountain, 811 A.2d 24, 25-26 (Pa. Super. 2002)
(internal quotations and citations omitted)).
In its Petition for habeas corpus relief, Nigro challenged only the value
of the items purportedly stolen. Petition for Writ of Habeas Corpus, ¶ 6.
Nigro averred that “the absence of any evidence to establish the value of the
LED light requires [the trial court] to set the value at $50 and the offense
must be graded as a misdemeanor of the third degree.” Id., ¶ 18. The trial
court agreed with Nigro’s interpretation of the Crimes Code. See N.T.,
6/24/15, at 56-57 (determining that “the Commonwealth has only shown
that there was some value, but not specific value, with regard to this
fixture[,]” and directing the reduction of both offenses to misdemeanors of
the third degree). Upon review of the relevant sections of the Crimes Code,
we disagree with the interpretation advanced by Nigro and adopted by the
trial court.
Section 3921(a) of the Crimes Code, “theft by unlawful taking or
disposition,” describes the elements of the conduct which constitutes theft of
movable property: “A person is guilty of theft if he unlawfully takes, or
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exercises unlawful control over, movable property of another with intent to
deprive him thereof.” 18 Pa.C.S.A. § 3921(a). Crimes Code Section 3901
defines “moveable property” as “[p]roperty the location of which can be
changed, including things growing on, affixed to, or found in land, and
documents although the rights represented thereby have no physical
location. ‘Immovable property’ is all other property.” Id. § 3901. As this
Court has recognized, “[n]either [s]ection 3921[,] which details the crime[,]
nor [s]ection 3901[,] which describes the property[,] contain the element of
value.” Commonwealth v. McKennion, 340 A.2d 889, 891 (Pa. Super.
1975). In McKennion, this Court ultimately concluded that “value is not an
essential element of the crime of theft. Rather, the value of the stolen items
becomes relevant only to establish the grade of the offense for purposes of
imposing sentence.” Id. (emphasis added).
A person is guilty of the crime of theft by deception “if he intentionally
obtains or withholds property of another by deception.” 18 Pa.C.S.A.
§ 3922(a). A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of mind;
but deception as to a person’s intention to perform a promise
shall not be inferred from the fact alone that he did not
subsequently perform the promise;
(2) prevents another from acquiring information which would
affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver knows to
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be influencing another to whom he stands in a fiduciary or
confidential relationship.
18 Pa.C.S.A. § 3922(a). As with section 3901, section 3922 does not
include an element of value. See McKennion, 340 A.2d at 891.
Thus, we conclude that the trial court erred in granting Nigro’s Petition
for habeas corpus relief, based upon the Commonwealth’s failure to present
evidence of value. On this basis, we reverse the Order of the trial court, and
remand for trial.3
Order reversed; case remanded for trial; Superior Court jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2016
3
Based upon our resolution of the Commonwealth’s first issue, we need not
address its remaining claim.
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