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Commonwealth v. Shamberger

Judgment of sentence affirmed; thefts of items from handbags that theater patrons had placed on floor of theater were properly graded for sentencing purposes as thefts "from the person," because such thefts include theft from a victim's presence and from his immediate possession and control.

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� 1 Gregory Shamberger appeals *fn1 the judgment of sentence *fn2 of 25 months to 10 years imprisonment imposed after a jury convicted him of one count each of theft, attempted theft, and unsworn falsification to authorities, and three counts of forgery. *fn3 Appellant’s convictions arose out of the theft of items from handbags that theater patrons had placed on the floor of the theater while they were watching movies. We granted en banc review to consider a question of first impression in the Commonwealth, whether Appellant’s theft convictions properly were graded for sentencing purposes misdemeanors of the first degree as thefts “from the person” under 18 Pa.C.S.A. � 3903(b). Upon review, we conclude that theft from the person under Section 3903(b) includes not only theft from the victim’s body, but also theft in the victim’s presence and from his immediate possession and control. Accordingly, we affirm.

� 2 The evidence presented at trial established that in June 1998, Linda Reese attended a movie with her husband at a theater at the Regal Cinemas complex in Plymouth Township. The couple sat in the back of a nearly empty theater. Reese placed her purse, which had been zipped closed, on the floor of the theater and placed the strap over the arm of her seat, keeping her hand on the strap. During the movie, Reese observed a man, who later was identified as Shamberger, climb over a row of seats and sit behind her. As she was preparing to leave the theater after the movie, Reese noticed that her purse had been opened and her wallet had been removed from her purse. Reese located the wallet on the floor under the seat next to hers with some of its contents spilled on the floor. Three credit cards and $40 in cash had been taken from Reese’s wallet and unauthorized charges totaling approximately $200 later appeared on her credit card statement. Reese reported the incident to theater management and made a report to the police.

� 3 In late August 1998, Christina Geiser attended a movie by herself at the Regal Cinemas. Like Reese, Geiser sat in the back of a nearly empty theater and placed her handbag on the floor next to, but not touching, her foot. During the movie, she heard a noise and turned to see someone sit down behind her. At the end of the movie, she noticed that the person no longer was sitting behind her. Subsequently, she discovered that her money and three credit cards were missing from her wallet and that unauthorized charges in excess of $1,000 had been made on one of her missing credit cards. Geiser filed a police report regarding the theft.

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