Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 1902 of 1974, in case of Commonwealth of Pennsylvania v. Charles Edward Stauffer.
R. S. Trigg and Edward F. Browne, Jr., Assistant Public Defenders, for appellant.
Charles A. Achey, Jr., Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Price, J., dissents.
[ 239 Pa. Super. Page 464]
Appellant contends that his sentence for theft was excessive because he was sentenced under § 3903(b)(1) of the Crimes Code,*fn1 rather than under § 3903(b)(2).*fn2
[ 239 Pa. Super. Page 465]
Appellant was indicted for burglary and theft on bill number 1902, 1974, by the Lancaster County Grand Jury. Prior to trial, however, the court dismissed the burglary charge upon application by the prosecutor.*fn3 After two days of testimony on January 27, and 28, 1975, a jury found appellant guilty of theft of a television set. After denial of post-trial motions, the lower court sentenced appellant to pay a fine of $50.00 and to serve a term of imprisonment of nine to eighteen months.
Appellant concedes that he was properly convicted of theft under § 3921(a),*fn4 but contends that he was sentenced under the wrong subsection of the grading of theft offenses statute. Section 3903 provides, inter alia, that:
"(b) . . . Theft not within subsection (a) of this section, constitutes a misdemeanor of the first degree, except that if . . .:
"(1) the amount involved was fifty dollars ($50.00) or more but less than two hundred dollars ($200) the offense constitutes a misdemeanor of the second degree; or
"(2) the amount involved was less than fifty dollars ($50) the offense constitutes a misdemeanor of the third degree."*fn5
The statute, as amended on June 17, 1974, places the burden of proving valuation on the Commonwealth. See also, Commonwealth v. McKennion, 235 Pa. Superior Ct. 160, 340 A.2d 889 (1975); Commonwealth v. Kuykendall, 231 Pa. Superior Ct. ...