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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                 Appellant              :
                                        :
           v.                           :
                                        :
AARON NIGRO                             :             No. 1043 WDA 2015

              Appeal from the Order entered on June 24, 2015
          in the Court of Common Pleas of Westmoreland County,
             Criminal Division, No(s): CP-65-CR-0000383-2014

BEFORE: STABILE, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED MARCH 24, 2016

     The Commonwealth of Pennsylvania appeals from the Order granting

the Petition for habeas corpus relief filed by the defendant, Aaron Nigro

(“Nigro”). We reverse and remand for further proceedings.

     On May 7, 2013, the Commonwealth filed a Criminal Complaint against

Nigro charging him with theft by unlawful taking—movable property, as a

second-degree felony. See 18 Pa.C.S.A. § 3921(a). The Criminal Complaint

alleged that Nigro “did unlawfully take or exercise unlawful control over

moveable property, namely LED Lights valued at $5000.00, belonging to

Genesis Security Integrations (“Genesis”), with the intent to deprive the

owner thereof ….” Criminal Complaint, 5/7/13, at 2.

     The Affidavit of Probable Cause asserted that upon termination of his

employment with Genesis, Nigro appeared at a UPS facility and took

possession of a package of LED lights, valued at $5,000.00.     Affidavit of
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Probable Cause, 5/7/13. The package was addressed to Nigro and Genesis.

Id. The Affidavit further stated that, at the time he took possession of the

package, Nigro had been “advised … of his termination with Genesis [] and

that he is to have no further dealings with the company.” Id.

        Subsequently, the    Commonwealth     filed   its   Criminal   Information

against Nigro, charging him with theft by unlawful taking-moveable property

(as a second-degree felony), and theft by deception (as a third-degree

felony).1    A preliminary hearing was conducted before a magistrate on

January 21, 2014. After several continuances, on April 10, 2015, Nigro filed

a Petition for habeas corpus relief. After a hearing, the trial court granted

Nigro’s Petition. On June 24, 2015, the trial court entered an Order reducing

Nigro’s charges of theft by unlawful taking and theft by deception to third-

degree misdemeanors.        Thereafter, the Commonwealth filed the instant

appeal, followed by a court-ordered Pa.R.A.P. Concise Statement of matters

complained of on appeal.2 The Commonwealth additionally certified that the

trial court’s decision would substantially handicap its ability to prosecute

Nigro.

        The Commonwealth now presents the following claims for our review:

        1. Whether the [trial c]ourt erred in granting pre-trial habeas
        corpus relief regarding a non-essential element of theft offenses
        by ordering the reduction of the grade of the offenses from

1
    See 18 Pa.C.S.A. § 3922(a)(1).
2
 Rather than filing an Opinion, the trial court directed our attention to the
pages in the Notes of Testimony where it explained its decision.

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      felonies of the third degree to misdemeanors of the third
      degree[?]

      2. Whether the Commonwealth established a prima facie case
      regarding the value of the stolen property[?]

Brief for the Commonwealth at 4.

      The Commonwealth first claims that the trial court improperly granted

habeas corpus relief to Nigro. Id. at 8. The Commonwealth argues that the

preliminary hearing stage of the proceedings, it need not prove guilt beyond

a reasonable doubt. Id. Rather, it must produce prima facie evidence of

the crime charged, and whether the evidence “establishes sufficient probable

cause to warrant the belief that the accused committed the offense.”        Id.

According to the Commonwealth, the value of the allegedly stolen property

is not a material element of a theft offense.      Id. at 9.   Therefore, the

Commonwealth argues, the absence of such evidence is not a proper subject

matter for pre-trial habeas corpus relief. Id.

      As this Court has explained,

      [t]he decision to grant or deny a petition for writ of habeas
      corpus will be reversed on appeal only for a manifest abuse of
      discretion. It is settled that a petition for writ of habeas corpus
      is the proper means for testing a pre-trial finding that the
      Commonwealth has sufficient evidence to establish a prima facie
      case.    Although a habeas corpus hearing is similar to a
      preliminary hearing, in a habeas corpus proceeding the
      Commonwealth has the opportunity to present additional
      evidence to establish that the defendant has committed the
      elements of the offense charged….

            A prima facie case consists of evidence, read in the light
      most favorable to the Commonwealth, that sufficiently
      establishes both the commission of a crime and that the accused


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      is probably the perpetrator of that crime. The Commonwealth
      need not prove the defendant’s guilt beyond a reasonable doubt.
      Rather, the Commonwealth must show sufficient probable cause
      that the defendant committed the offense, and the evidence
      should be such that if presented at trial, and accepted as true,
      the judge would be warranted in allowing the case to go to the
      jury.

Commonwealth v. Black, 108 A.3d 70, 77 (Pa. Super. 2015) (quoting

Commonwealth v. Fountain, 811 A.2d 24, 25-26 (Pa. Super. 2002)

(internal quotations and citations omitted)).

      In its Petition for habeas corpus relief, Nigro challenged only the value

of the items purportedly stolen.    Petition for Writ of Habeas Corpus, ¶ 6.

Nigro averred that “the absence of any evidence to establish the value of the

LED light requires [the trial court] to set the value at $50 and the offense

must be graded as a misdemeanor of the third degree.” Id., ¶ 18. The trial

court agreed with Nigro’s interpretation of the Crimes Code.        See N.T.,

6/24/15, at 56-57 (determining that “the Commonwealth has only shown

that there was some value, but not specific value, with regard to this

fixture[,]” and directing the reduction of both offenses to misdemeanors of

the third degree). Upon review of the relevant sections of the Crimes Code,

we disagree with the interpretation advanced by Nigro and adopted by the

trial court.

      Section 3921(a) of the Crimes Code, “theft by unlawful taking or

disposition,” describes the elements of the conduct which constitutes theft of

movable property:    “A person is guilty of theft if he unlawfully takes, or



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exercises unlawful control over, movable property of another with intent to

deprive him thereof.” 18 Pa.C.S.A. § 3921(a). Crimes Code Section 3901

defines “moveable property” as “[p]roperty the location of which can be

changed, including things growing on, affixed to, or found in land, and

documents although the rights represented thereby have no physical

location. ‘Immovable property’ is all other property.” Id. § 3901. As this

Court has recognized, “[n]either [s]ection 3921[,] which details the crime[,]

nor [s]ection 3901[,] which describes the property[,] contain the element of

value.”   Commonwealth v. McKennion, 340 A.2d 889, 891 (Pa. Super.

1975). In McKennion, this Court ultimately concluded that “value is not an

essential element of the crime of theft. Rather, the value of the stolen items

becomes relevant only to establish the grade of the offense for purposes of

imposing sentence.” Id. (emphasis added).

     A person is guilty of the crime of theft by deception “if he intentionally

obtains or withholds property of another by deception.”          18 Pa.C.S.A.

§ 3922(a). A person deceives if he intentionally:

        (1) creates or reinforces a false impression, including false
     impressions as to law, value, intention or other state of mind;
     but deception as to a person’s intention to perform a promise
     shall not be inferred from the fact alone that he did not
     subsequently perform the promise;

         (2) prevents another from acquiring information which would
     affect his judgment of a transaction; or

        (3) fails to correct a false impression which the deceiver
     previously created or reinforced, or which the deceiver knows to



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      be influencing another to whom he stands in a fiduciary or
      confidential relationship.

18 Pa.C.S.A. § 3922(a).      As with section 3901, section 3922 does not

include an element of value. See McKennion, 340 A.2d at 891.

      Thus, we conclude that the trial court erred in granting Nigro’s Petition

for habeas corpus relief, based upon the Commonwealth’s failure to present

evidence of value. On this basis, we reverse the Order of the trial court, and

remand for trial.3

      Order reversed; case remanded for trial; Superior Court jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2016




3
 Based upon our resolution of the Commonwealth’s first issue, we need not
address its remaining claim.



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