No. 1284 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, at Nos. 980-981, September Session, 1976.
Before Jacobs, P.j., Hoffman, Cercone, Price, Van der Voort, Spaeth, and Hester, JJ. Hoffman, J. files a dissenting opinion. Jacobs, Former P.j., did not participate in the consideration or decision of this case.
Judgment of sentence affirmed.
Hoffman, J. files a dissenting opinion.
Jacobs, Former P.J., did not participate in the consideration or decision of this case.
The Commonwealth now bears the burden of proving valuation of property stolen. 18 Pa. C.S.A. § 3903(b), as amended June 17, 1974. Commonwealth v. Stauffer, Pa. Superior Ct. , 361 A.2d 383 (1976). More importantly, I believe that the lower court may impose sentence only within the limits of the particular gradation of the theft offense proven at trial. See Commonwealth v. Farmer, Pa. Superior Ct. , 368 A.2d 748 (1976) (allocatur refused); Commonwealth v. Stauffer, supra. Cf. my Dissenting Opinion in Commonwealth v. McKennion, 235 Pa. Superior Ct. 160, A.2d (1975). Thus, to warrant appellant's sentence of 2-1/2 to 5 years imprisonment on the theft charge, the Commonwealth should have proved at trial that the goods appellant stole were worth at least $200.00. See 18 Pa. C.S.A. §§ 106(b) (6) and 3903(b) (theft of property valued between $200 and $2,000 constitutes a misdemeanor of the first degree, which is punishable by a maximum 5 year term of imprisonment). In the instant case, however, the parties stipulated at trial only that the propety allegedly stolen was valued in excess of $50.00 (Opinion of the lower court, p. 4). Without more, the lower court could sentence appellant to a maximum of only 2 years imprisonment. See 18 Pa. C.S.A. §§ 106(b)(7) and 3903(b)(1) (theft of property valued between $50 and $200 constitutes a misdemeanor of the second degree which is punishable by a maximum 2 year term of imprisonment). I would, therefore, vacate the judgment of sentence and remand for resentencing, such resentencing not to exceed a 2 year term of imprisonment.