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HomeMy WebLinkAbout01-2307 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEAN L. FINCH 01-2307 CRIMINAL TERM IN RE: PETITION TO MODIFY SENTENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., April 18, 2002:-- On February 19, 2002, petitioner pled guilty to a count of receiving stolen property in violation of the Crimes Code at 18 Pa.C.S. Section 3925(a), which provides: A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with the intent to restore it to the owner. Section 3925(b) states: As used in the section the word "receiving" means acquiring possession, control or title, or lending on the security of the property. The criminal complaint against defendant alleged: In that, on or about said date, the defendant did intentionally receive, retain or dispose of movable property, namely, eleven (11) Braun MP80 Delux [sic] Juice Extractors valued at $385.00 (more or less) and fifty-two (52) Braun EF20 Silk-e'pil Cosmetic Electric Razors valued at $787.80 (more or less), [total value: $1,172.80] belonging to Ready Trucking, Lancaster, Pa., with no intent to restore it to the owner, knowing that such property was stolen, or believing that it had probably been stolen, in violation of Section 3925(a) of the PA Crimes Code. note: This offense is a felony of the third degree due to the receiver being in the business of buying or selling stolen property. 01-2307 CRIMINAL TERM The affidavit of probable cause for the complaint stated: On 6/23/00, The Silver Spring Twp. Police was contacted by Fred Steir, Director of Northeast Operations for Ready Trucking, Lancaster, PA. Steir informed police that he had received information that one of his employees, a Dean Finch, was selling stolen Gillette products at the Silver Spring Flea Market in Silver Spring Twp. Steir related that Finch is/was a truck driver for his company. Steir further explained that a load that Finch was hauling did contain the name Gillette products that were being offered for sale at the Flea Market by Finch, and that this particular load of Gillette products were numerous cases short when it arrived at its destination on 6/15/00. The Gillette Company provided Ready Trucking and the Silver Spring Twp. Police with an identifying number that was unique and specific for this particular shipment, the same shipment that was on a tractor trailer being hauled and delivered by Finch. According to Steir, the shipment was thirty-six cases short of Braun/Gillette Silk-e'pil electric razors. There is said to be five (5) razors per case. Each razor is valued at $15.15 each. (Total $2,727.00), --and-- forteen [sic] cases short of Braun/Gillette Delux [sic] Juice Extractors. There is said to be three (3) juice extractors per case, each valued at $35.00, (total $1,470.00). Total amount of Ready Trucking loss is: $4,197.00. On 7/16/00 your affiant went to the Silver Spring Flea Market at the request of Special Agent James C. Barnacle, Federal Bureau of Investigation, in an attempt to locate Finch selling the reported stolen items. These items were located and positively identified via the unique and specific code number contained on the product(s). A total of eleven (11 ) juice extractors and fifty-two (52) razors were ultimately seized. On 7/17/00, Dean Finch came to to [sic] the Silver Spring Township Police Station to speak with your affiant. After a short discussion, Finch admitted that he removed the razors and juice extractors from the rear of a tractor-trailer under his control and took the items home. He then admitted to selling said items at the Flea Market and also provided the police with a written statement. (Emphasis added.) -2- 01-2307 CRIMINAL TERM The criminal information against defendant charged: [t]hat on or about Sunday, the 16th of July, 2000, in the said county of Cumberland, Dean L. Finch, did intentionally receive, retain or dispose of movable property of another knowing that it had been stolen, or believing that it had probably been stolen. On February 19, 2002, defendant entered a plea of guilty to the count of receiving stolen property. The colloquy was: ASSISTANT DISTRICT ATTORNEY: The defendant is charged with receiving stolen property as a felony three. At this time, pursuant to a negotiated plea agreement, the defendant will be pleading guilty to receiving stolen property, graded as a misdemeanor one, in full satisfaction. The offense was originally charged as a felony because of the allegation that he was in the business of selling stolen property. The facts of the case are that on June 23rd, 2000, the Silver Spring Township police were contacted by the director of northeast operations for Ready Trucking out of Lancaster. This individual informed the police that he received information that one of his employees, the defendant, was selling stolen Gillette products at the Silver Spring Flea Market in Silver Spring Township, and that the defendant is or was a truck driver for his company. The police did go to the Silver Spring Flea Market in an attempt to locate the defendant selling the reported stolen items. The items were located and positively identified via their unique and specific code numbers contained on the products. The original complaint alleged that the Ready Trucking loss was $4,197.00. It's my understanding that the police obtained property in the amount of $1,172.80. It appears that there is an outstanding restitution figure of $3,024.20. (Emphasis added.) THE COURT: If you did what the District Attorney said you did, if you had this stolen property in your possession and you either knew that it was stolen or you knew that it was probably stolen, then you would be guilty of this receiving stolen property offense. Do you wish to tender a plea of guilty? -3- 01-2307 CRIMINAL TERM THE DEFENDANT: Yeah. THE COURT: Do you admit you committed the offense? THE DEFENDANT: Yeah. Defendant was sentenced on February 19, 2002, to make restitution to the Ready Trucking Company in the amount of $3,024.20, and undergo imprisonment in the Cumberland County Prison for a term of not less than two months nor more than twenty-three months. On March 1, 2002, defendant filed a timely motion to modify his sentence solely as to the order of restitution to Ready Trucking Company in the amount of $3,024.20. On March 6, 2002, an order was entered setting a hearing on the motion, and providing that, "The restitution part of the order of February 19, 2002, is temporarily vacated. All other provision [sic] of the sentencing order shall remain in full force and effect." At the hearing on the motion, the Commonwealth produced evidence showing that merchandise, in the form of juice extractors and razors, was stolen from a trailer that defendant had been hauling between Massachusetts and Virginia for Ready Trucking Company. The value of the goods stolen was $3,217. ($2,727 in razors and $490 in juice extractors). Officer Dale Sabadish of the Silver Spring Township Police, testified that he arrested defendant at the Silver Spring Flea Market after he found him selling property stolen from the Ready Trucking Company. Defendant then admitted to Officer Sabadish that he had removed the juice extractors and razors off the trailer he had been hauling for the Ready Trucking Company. The parties stipulated that the difference in the value of the goods stolen from the trailer and the value of the goods -4- 01-2307 CRIMINAL TERM seized from defendant at the time of the arrest, which goods are still in the possession of the Silver Spring Township Police, is $2,300.88. Defendant maintains that he was only charged in the criminal complaint with receiving stolen goods that were actually seized from him at the Silver Spring Flea Market. He argues that those goods were recovered, so he owes no restitution to the Ready Trucking Company. In Commonwealth v. McFarland, 452 Pa. 435 (1973), property valued at approximately $263,000 which included two safes, cash, jewelry and securities, was stolen from an apartment in Dauphin County. Eleven months later, police recovered from the defendant three negotiable treasury bonds that had been stolen during the burglary. The defendant was convicted of burglary, larceny, and receiving stolen property. The sentence included an order of "restitution of property feloniously received." The Supreme Court of Pennsylvania reversed the convictions for larceny and burglary, but upheld the conviction for receiving stolen property. As to the sentence of "restitution of property feloniously received," the Court concluded: Since the three bonds found in appellants' possession where returned to the [victims], we can only assume that the restitution provision was intended by the court to attach to the burglary sentence so that the [victims] would be compensated for property stolen but not recovered. In any event, the restitution provision is inoperative. If it is considered a part of the sentence imposed upon the burglary conviction, it must fall away with the reversal of that conviction. If restitution is part of the sentence for receiving stolen goods, as the court below seems to have intended, the provision is meaningless because the securities found in the possession of the appellants have already been restored to the [victims]. We cannot countenance a sentence provision requiring compensation for property which the Commonwealth has not proven was either stolen or received by the appellants. -5- 01-2307 CRIMINAL TERM In the case sub judice, Officer Sabadish discovered defendant selling items stolen from the Ready Trucking Company at the Silver Spring Flea Market. He seized the goods that had not yet been sold. Defendant then admitted to the officer that he had committed the theft of the juice extractors and razors off the trailer he had been hauling for the Ready Trucking Company. Officer Sabadish included this information in the probable cause for the complaint charging defendant with receiving property stolen from the Ready Trucking Company. Unlike the facts in McFarland, the Commonwealth has proven that defendant stole the juice extractors and razors from the Ready Trucking Company, sold part of that stolen property at the Silver Spring Flea Market, and was found in the possession of the remaining property by Officer Sabadish. When defendant entered his plea of guilty to theft by receiving stolen property, the colloquy set forth that he would be responsible for the difference between the stolen property recovered, and the amount of the loss from the theft. That amount is $2,300.88. The property seized that is still in the possession of the police should be returned to the Ready Trucking Company. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of April, 2002, the motion of defendant to modify his sentence as to the order of restitution, IS GRANTED, to the extent that defendant is ordered to pay restitution to the Ready Trucking Company in the amount of $2,300.88. -6- 01-2307 CRIMINAL TERM By the Court, Edgar B. Bayley, J. Kara Haggerty, Esquire For the Commonwealth William Braught, Esquire For Defendant :sss -7-