PA Superior Court: Trial Court Should Ask Jury to Determine Amount Stolen in Theft Case

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Seladones. In Seladones, the defendant challenged her sentence of one to 18 months’ incarceration for her conviction for theft by unlawful taking. The defendant argued that she could only be sentenced to the maximum sentence for a misdemeanor offense because the jury never specifically found that she had stolen any particular amount. The Superior Court agreed and reversed her judgment of sentence.

The Facts of Seladones

In Seladones, the complainant kept about $10,000 worth of currency and coins in her house. She was hospitalized with COVID, and the defendant agreed to go to the house to check on the complainant’s cats while she was in the hospital. The defendant had done that for the complainant on previous occasions without incident. Once the complainant was discharged from the hospital, she realized that her $10,000 was missing.

She called the police and told them that she thought the defendant probably stole the money. The police began investigating, and they interviewed the defendant. They lied to the defendant, telling her that the complainant did not want to see anyone prosecuted but just wanted someone to own up to the theft. Of course, that was not true, but the complainant confessed, and the officer promptly arrested her. The officer had been secretly wearing a microphone, so the confession was on tape.

Can the police lie to you?

It is important to remember that the police can lie to you but you cannot lie to them. In this case, the officer very clearly lied and said that she would not be arrested if she confessed. That was not a binding promise, and she was immediately arrested. The full audio-taped confession was used against her in court. If she had lied to the police, however, she could have potentially been charged with all sorts of offenses relating to such a lie.

The Criminal Prosecution

The Commonwealth charged the defendant with one count of theft by unlawful taking as a felony of the third degree. The defendant went to trial and argued that the confession was coerced. The jury rejected that argument and found her guilty.

At sentencing, the defendant argued that the court should grade the offense as a misdemeanor of the third degree because it had not asked the jury to find how much money the complainant stole. Theft by unlawful taking becomes a felony when someone steals more than $2,000, but it is a third degree misdemeanor when the Commonwealth fails to prove the amount stolen or the amount is under $50. The trial court rejected this argument, finding that she had been charged with theft as a felony of the third degree and had confessed to stealing far more than $50. The court sentenced her to one to 18 months’ incarceration, which is a sentence that would only be allowed for an offense more serious than a third degree misdemeanor. The defendant appealed.

The Superior Court Appeal

On appeal, the Superior Court agreed with the defendant. She had been charged with and confessed to stealing far more than $50, but she had not agreed to stealing that amount in court. The jury verdict form did not contain any special interrogatory asking the jury to make a finding as to whether she stole at least $2,000. Theft by unlawful taking requires a theft of more than that amount in order for it to be a felony, and any fact which potentially increases the penalty for an offense must be found beyond a reasonable doubt by the jury. Because the jury never determined that she in fact stole the required amount for a felony of the third degree, the trial court erred in grading the charge as a felony and sentencing the defendant for a felony. The Court ruled that the trial court should have included a question on the jury verdict form as to whether the jury found that the defendant stole $2,000 or more. Because it did not, the offense had to be graded as a low level misdemeanor, and the defendant is entitled to a new sentencing hearing.

This is an interesting case because it shows that the judge may not usurp the role of the jury and decide the gradation of the defense no matter how strong the Commonwealth’s evidence was. Further, the rules of criminal procedure do not actually give the court authority to issue special interrogatories to a jury, and there is prior precedent suggesting that such interrogatories are disfavored. The use of interrogatories has become more prevalent in recent years due to some important decisions from the United States Supreme Court, but it is not totally clear that the rules in Pennsylvania actually authorize them. Nonetheless, this is a good decision for the defense. The jury must find any fact which potentially increases the sentence or other penalties for an offense.

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Goldstein Mehta LLC Criminal Defense Attorneys

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