No. 657 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC8000259A.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
John H. Corbett, Jr., Pittsburgh, for appellee.
Brosky, DiSalle and Shertz, JJ.
[ 289 Pa. Super. Page 224]
Appellee was charged with Retail Theft, Third Offense,*fn1 in violation of 18 Pa.C.S. § 3929(a)(1) and (b)(1)(IV).*fn2
[ 289 Pa. Super. Page 225]
Before trial, the court heard arguments concerning the admissibility of evidence of appellee's two prior convictions for retail theft. Following the court's decision to allow the evidence, defense counsel agreed to a stipulation concerning the two prior convictions, which was read to the jury.*fn3 Thereafter, the prosecutor, during his opening remarks to the jury, stated that he intended to prove as part of his case appellee's two prior convictions. Defense counsel objected to this statement and moved for a mistrial, which was denied. Following conviction, defense counsel filed and argued post-trial motions in arrest of judgment and for a new trial, which were denied. On the date set for sentencing, the court reconsidered the motions and vacated its order denying the motions. It entered a new order denying the motion in arrest of judgment but granting the motion for a new trial.
The central issue for our determination is whether it was proper for the Commonwealth to refer to appellee's prior convictions in addressing the jury. The court below held that evidence concerning prior convictions is relevant for purposes of sentencing only, and that its introduction during the trial was prejudicial to appellee. We agree.
The Commonwealth contends that appellee's prior convictions were properly introduced at trial as an element of the offense charged, reasoning as follows: An "element of an offense" as defined by 18 Pa. C.S. § 103, includes "conduct . . . establishing jurisdiction." The grading subsection of the retail theft statute states that a third or subsequent offense of retail theft constitutes a felony of the third degree. Since Courts of Common Pleas have jurisdiction over felony offenses, introduction of evidence of prior offenses, as "conduct establishing jurisdiction," constitutes an
[ 289 Pa. Super. Page 226]
"element of the offense." Since the Commonwealth has the burden of proving every element of an offense beyond a reasonable doubt, prior convictions, as an element of the offense of Retail Theft, Third Offense, must also be proven beyond a reasonable doubt. Therefore, it ...