No. 650 October Term, 1976, Appeal from the order Judgment of Sentence of the Court of Common Pleas of Montgomery County, No. 2038 April Term, 1975, Criminal Section
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents.
[ 251 Pa. Super. Page 541]
Appellant was charged with retail theft under Sections 3929(a)(1) and (a)(2)*fn1 of the Pennsylvania Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1 et seq., 18 Pa.C.S.A. § 101 et seq. A jury found him guilty. It was his third offense, and he was sentenced to two and one half to five years in prison.
The Commonwealth's evidence was to the following effect. Late in the afternoon of April 30, 1975, appellant was seen to take a tote bag from a shelf in the luggage department and remove the price tags and paper stuffing. Carrying the tote bag, appellant moved to the men's department, which was nearby. He subsequently put the tote bag back on the shelf, but a store detective apprehended him and he was found to be wearing a new Levi's denim suit that was missing a price tag but still had the manufacturer's ticket on the back of the jacket and the plastic cord to which the price tag had been fastened. The price tag was found in the men's department fitting room, along with appellant's clothing. The detective testified to having smelled alcohol on appellant's breath.
[ 251 Pa. Super. Page 542]
The defense presented evidence that appellant's son had just died, that the funeral had been earlier in the afternoon of the day appellant was apprehended, and that appellant, who was under a doctor's care, had acted distracted at his home and had run out into the street shouting about the death of his son. Shortly after his arrest, appellant collapsed and was taken from the police station to a hospital.
Section 3929(a)(2) subjects to punishment anyone who "alters, transfers or removes any label, price tag or marking upon any merchandise offered for sale by any store or other retail mercantile establishment . . . ." While the section appears quite specific, appellant argues that it is unconstitutionally vague because it does not specify whether criminal intent is required. Thus, appellant says, it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden . . . ." Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972).
We choose to regard appellant's argument as presenting a question of statutory construction rather than of constitutional law. We do this because a court should only decide a case on constitutional grounds if necessary. Lattanzio v. Unemployment Compensation Bd. of Review, 461 Pa. 392, 336 A.2d 595 (1975) (U.S. Constitution); Lynch v. Owen J. Roberts School Dist., 430 Pa. 461, 244 A.2d 1 (1968) (Pennsylvania Constitution).
Whether a given statute is to be construed as requiring criminal intent is to be determined by the court, by considering the subject matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature. Commonwealth v. Bready, 220 Pa. Super. 157, 286 A.2d 654 (1971). The legislature may define a crime so that proof of criminal intent is not necessary. Commonwealth v. Grant, 235 Pa. Super. 357, 341 A.2d 511 (1975). In Commonwealth v. Koczwara, 397 Pa. ...