Com. v. Nellom, F. ( 2020 )

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2020 PA Super 139COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK NELLOM, :
:
Appellant : No. 1669 EDA 2019
Appeal from the Judgment of Sentence Entered June 3, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007367-2018
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
OPINION BY SHOGAN, J.: FILED JUNE 10, 2020
Frank Nellom (“Appellant”) appeals pro se from the judgment of
sentence entered in the Delaware County Court of Common Pleas, following
his jury trial conviction for theft of services.1 After careful review, we affirm
the conviction, but vacate and remand for resentencing.
The trial court summarized the facts adduced at trial, as follows:
On or about September 20 of 2018, [Philadelphia Electric
Company (“PECO”)] employees Keith Steger and John Senkow with
the assistance of Darby police officer Thomas Takacs responded to
520 Keystone Avenue in Darby due to a complaint from PECO’s
claims department. (N.T. 04/9/19, p. 110). The house’s lights
were on when Appellant answered the door. (N.T. 04/9/19, p.
112). Appellant was the only person inside the residence. (N.T.
04/9/19, p. 112). After gaining access to the meter in the
basement, Mr. Steger and Mr. Senkow discovered the meter had
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3926(a)(1).
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been altered. (N.T. 04/9/19, p. 113). The meter was a “foreign
meter” that did not belong to the house. (N.T. 04/9/19, p. 116).
The meter’s ring was missing, which posed a risk of causing an
“electrical flash.” (N.T. 04/9/19, p. 116). The dirt on the meter
indicated that it had been left out of the socket until fairly recently.
(N.T. 04/9/19, p. 117). In order to safely remove the meter, the
service to the house had to be cut from the outside. (N.T. 04/9/19,
p. 120). Outside the tap connection that connected power to the
house was loose, creating an unsafe environment. (N.T. 04/9/19,
p. 123).
At the same time, Appellant tried to barter with Mr. Senkow
by offering to pay half of what he owed PECO in return for turning
the power back on. (N.T. 04/9/19, p. 134). Sometime later after
his power was shut off, Appellant contacted PECO’s customer
support to have the power put back on as well. (N.T. 04/9/19, p.
136). Investigation into the house at 520 Keystone Avenue
determined that while Appellant did not own the house,
documentation placed him at the address[,] and his business was
being run out of the property. (N.T. 04/9/19, p. 137).
Analytics indicated that the last date the meter took a
reading was on May 10, 2017. (N.T. 04/9/19, p. 177). A theft
calculation conducted by PECO business analysist David Bucholtz
determined that PECO should have received $2,478 from the
location had the meter not been tampered with. The total
calculation amounted to $3,658 including $1,180 for fees
associated with needing to send out a team to cut the taps. (N.T.
04/9/19, p. 179).
At trial, Appellant acted as his own counsel [after an
extensive waiver of counsel colloquy]. The trial court advised
[Appellant] what acting as his own attorney would entail.
The Court: Okay. Do you understand that errors or
mistakes are made by you during this trial, by either
the Commonwealth, the [c]ourt or you, and evidence
is presented which is improper and you fail to object
or to make appropriate motions, then your rights with
respect to these errors and mistakes will be lost to you
permanently, do you understand that?
[Appellant]: Yes, I understand.
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(N.T. 04/9/19, p. 6).
Trial Court Opinion, 10/17/19, at 2–3 (footnote omitted).
Trial commenced on April 9, 2019, with Alex Amoroso, Esq., as standby
counsel. On April 10, 2019, the jury found Appellant guilty of one count of
theft of services. N.T., 4/10/19, at 39. It further found that the value of the
stolen services exceeded $50. Id. On June 3, 2019, Appellant was sentenced
on the conviction, graded as a third degree felony, to twenty-one to forty-two
months of incarceration, followed by three years of probation. The court also
ordered Appellant to pay $3,659.00 in restitution to PECO. After being
informed of his appeal rights, including the assistance of counsel on appeal,
Appellant filed his pro se notice of appeal on June 18, 2019.2
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2 Appellant filed another pro se notice of appeal at 1935 EDA 2019, which
bears the same trial court docket number as the instant appeal. In response
to A Rule to Show Cause as to why the appeal at 1935 EDA 2019 should not
be dismissed as duplicative of 1669 EDA 2910, Appellant filed an application
to consolidate the appeals. On January 8, 2020, this Court ordered:
Appellant’s application to consolidate the appeals at
Superior Court Docket Nos. 1669 EDA 2019 and 1935 EDA 2019
is DENIED. The appeal at 1935 EDA 2019 is duplicative of the
appeal at 1669 EDA 2019.
Because the brief Appellant filed at 1935 EDA 2019 is also
duplicative of the brief this Court docketed as Appellant’s
"Supplemental Brief" at 1669 EDA 2019, the appeal at 1935 EDA
2019 is DISMISSED AS DUPLICATIVE of the appeal at 1669 EDA
2019.
Appeal at Superior Court Docket No. 1935 EDA 2019
DISMISSED.
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The trial court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement and gleaned the questions complained of on appeal from
Appellant’s pro se Application for Relief filed in this Court on October 10,
2019.3 The court identified the issues, as follows:
1. The trial court erred by refusing Appellant’s request to
show jurors his utility bills from when he lived at the 520 Keystone
Avenue location where the theft was alleged to have taken place,
and current address bills showing the Commonwealth of
Pennsylvania through the [Low Income Home Energy Assistance
Program (“LIHEAP”)] pays the majority if not all of his electric and
gas expenses each year as a result of his being declared disabled
since 2015, which is the last time service was in Appellant’s name
at the 520 Keystone Avenue address. In order to show jurors
even if Appellant knew how to place taps in the electrical line two
stories high started as the evidence creating the theft, would not
risk his life doing so to save his State money. Although, having
grown up at the Union League of Philadelphia as a teenager very
fond of his state.
2. The trial court erred by after rejecting the over $2,000
evidence needed to prove the third degree felony charged,
thereby, required to deem the value less than $50.00 as
mandated by 18 Pa. C.S.A. § 3903.(c)(3). “When the value of
property cannot be satisfactory ascertained pursuant to the
standards set forth in paragraphs (1) and (2) of this subsection
its value shall be deemed to be an amount less than $50.” No
authority authorized jurors to be instructed to guess at over or
under $50. Since [neither] would prove the over $2,000 amount
to establish the third felony charged, and sentenced imposed
upon.
3. The trial court erred by failing to instruct jurors that
according to 18 Pa.C.S.A. §[3926](d)(1), because the owner of
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Order, 1/8/20, at unnumbered 1.
3 We question the trial court’s reliance on this Application for Relief rather
than addressing the issues as outlined in Appellant’s Pro Se Motion for
Reconsideration filed in the trial court on June 7, 2019.
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the property has legal possession and access “may be reasonably
inferred to have acted to avoid or tamper with the public utility
meter or measuring device with the intent to obtain the public
utility service without making full compensation thereof.
4. Evidence was insufficient to support the Verdict Slip
finding that Appellant committed theft of Service from on or about
May 10, 2017 to on or about September 20, 2018.
Trial Court Opinion, 10/17/19, at 1–2 (verbatim).
The trial court determined that Appellant’s arguments were meritless.
Specifically, the trial court concluded that: 1) it was Appellant’s
responsibility, and not the court’s, to introduce his billing records into
evidence; 2) the record did not reflect that the trial court rejected evidence
of the value of the stolen services; additionally, it was within the trial court’s
province to instruct the jury; 3) Appellant waived any challenge to the jury
instruction; and 4) the trial evidence was more than sufficient to support the
guilty verdict. Trial Court Opinion, 10/17/19, at 3–6.
Appellant re-framed the issues in his appellate brief, which we rephrase
for sake of clarity:
I. Was the evidence sufficient to demonstrate that: 1) there
were unauthorized taps on the outside electric line to the
property; and 2) the electric line to the property had been
previously cut or disconnected?
II. Did the trial court err by refusing to allow Appellant to
introduce evidence of the PECO billing history for the subject
property?
III. Did the trial court err by refusing to allow Appellant to
introduce evidence that his PECO bills were paid through his
participation in the LIHEAP assistance program?
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IV. Was the verdict slip deficient because it did not require the
jury to make a specific finding as to the value of the stolen
services, resulting in an illegal sentence?
V. Was the evidence sufficient to demonstrate that Appellant
lived at the subject property?
Appellant’s Brief at 3.
Appellant’s first and fifth issues allege that the evidence was insufficient
to support a theft of services conviction. We review Appellant’s challenge
under the following precepts:
A challenge to the sufficiency of the evidence is a question of
law, subject to plenary review. When reviewing a sufficiency
of the evidence claim, the appellate court must review all of
the evidence and all reasonable inferences drawn therefrom in
the light most favorable to the Commonwealth, as the verdict
winner. Evidence will be deemed to support the verdict when
it establishes each element of the crime charged and the
commission thereof by the accused, beyond a reasonable
doubt. The Commonwealth need not preclude every possibility
of innocence or establish the defendant’s guilt to a
mathematical certainty. Finally, the trier of fact while passing
upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
Commonwealth v. Levy, 83 A.3d 457, 461 (Pa. Super. 2013) (quoting
Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005)).
Section 3926 of the Crimes Code defines the offense of theft of services,
as follows:
(a) Acquisition of services.--
(1) A person is guilty of theft if he intentionally obtains services
for himself or for another which he knows are available only for
compensation, by deception or threat, by altering or tampering
with the public utility meter or measuring device by which such
services are delivered or by causing or permitting such altering or
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tampering, by making or maintaining any unauthorized
connection, whether physically, electrically or inductively, to a
distribution or transmission line, by attaching or maintaining the
attachment of any unauthorized device to any cable, wire or other
component of an electric, telephone or cable television system or
to a television receiving set connected to a cable television
system, by making or maintaining any unauthorized modification
or alteration to any device installed by a cable television system,
or by false token or other trick or artifice to avoid payment for the
service.
18 Pa.C.S. § 3926(a)(1).
In support of his first insufficiency claim, Appellant contends that there
was no evidence that “the electric line to the property was cut or disconnected
by PECO prior to the date the PECO investigator stated that he cut the line.”
Appellant’s Brief at 7. While Appellant is correct in this assertion, he fails to
explain its relevance. Appellant is claiming that statements in the affidavit of
probable cause that PECO investigators observed “unauthorized taps at the
rear of the property” . . . “unauthorized taps creating theft,” combined with
photographs of the outside taps admitted into evidence suggested to the jury
that he had tampered with the outside line and speculates that this
information could have influenced the jury’s guilty verdict. Id. There is no
support for this position. First, any evidence that PECO had previously
disconnected or cut the line would not have any impact on Appellant’s
involvement in the theft of services. Second, even if the language of the
affidavit of probable cause could conceivably be interpreted as indicating that
Appellant was responsible for interference with the outside line or taps, the
jury was not privy to the information included in the affidavit. Third, there
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was no evidence presented at trial that the outside taps had been cut by either
PECO or Appellant prior to September 20, 2018.
Testimony concerning the taps was elicited from Keith Steger, the PECO
revenue protection foreman, and was limited to statements concerning their
appearance, i.e., they “didn’t look safe,” were “sub-PECO standards,” and the
“connections were loose.” N.T., 4/9/19, at 121–123. He also stated that “an
electrician can make the taps.” Id. at 123. When Mr. Steger described the
images of the outside line and taps by reference to the photographic evidence,
Appellant did not object to the admission of the photographs. Id. at 124. As
the Commonwealth did not present the jury with any evidence suggesting that
Appellant tampered with the taps or cut the outside line, its guilty verdict could
not have been compromised by the admission of photographs. Simply put,
the Commonwealth was not seeking to prove that Appellant committed theft
of services traceable to his interference with the outside line; rather, its
prosecution of Appellant was premised on the illegal electrical service he
received via the replacement of a PECO meter with a foreign meter.
Statements included in the affidavit of probable cause that were not before
the jury and photos of the outside of the property, therefore, did not implicate
the question the sufficiency of the evidence supporting Appellant’s conviction
for theft of services. Appellant’s argument to the contrary is meritless.
Appellant’s second sufficiency challenge concerns the evidence that
Appellant lived at the subject property. Appellant claims that 18 Pa.C.S.
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§ 3926(d)(1) creates an inference that the property owner is responsible for
any activity resulting in the theft of services, and because he was not the
owner, the evidence must demonstrate that Appellant lived at the subject
property.
Initially, we disagree with Appellant’s legal premise that 18 Pa.C.S.
§ 3926(d)(1) somehow imposes a stronger inference of wrongdoing upon the
property owner. Rather, the subsection provides:
(d) Inferences.—
(1) Any person having possession of or access to the location
of a public utility meter or service measuring device which has been
avoided or tampered with so as to inhibit or prevent the accurate
measurement of utility service and who enjoys the use of or
receives the benefit from the public utility service intended to be
metered or measured by the public utility meter or measuring
device so avoided or tampered with may be reasonably inferred to
have acted to avoid or tamper with the public utility meter or
measuring device with the intent to obtain the public utility service
without making full compensation therefor.
18 Pa.C.S. § 3926(d)(1). There is no reference in the statutory language to
the property owner; rather the inference applies to “[a]ny person having
possession of or access to the location of a public utility meter or service
measuring device.” Id. (emphasis added).
Additionally, this Court has described the proof needed to permit an
inference of use of non-metered utility service. In Commonwealth v. Deer,
615 A.2d 386 (Pa. Super. 1992), we concluded:
[T]he statute does recognize that more than one person may be
the beneficiary of service. The statute simply allows an inference
where such a beneficiary has access to a meter which was
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tampered with to prevent accurate measurement. The fact that
others may also benefit will allow this inference to apply equally
to them. It remains, however, the Commonwealth’s responsibility
after application of the inference to establish beyond a reasonable
doubt that the defendant committed the theft. The absence of
proof may render a conviction unconstitutional, but the inference
itself, sanctioned by statute, is not.
An inference has been defined as no more than a logical tool
enabling the trier of fact to proceed from one fact to another.
Where the inferred fact is more likely than not to flow from the
proved fact on which it is made to depend the evidentiary
inference will pass constitutional scrutiny. We find that the
inference challenged in the present case is able to meet the more
likely than not standard. Where an individual has access to or
possession of a measuring device, and the device has been shown
to have been tampered with so as to inhibit or prevent the
accurate measurement of utility service, and where this same
individual enjoys the use or receives the benefit of the utility
service which has been interrupted, then it is more likely than not
that this individual tampered with the measuring device with the
intent of obtaining service without making full compensation for
it.
Id. at 387–388 (internal citations and quotations omitted). See also
Commonwealth v. Gallagher, 582 A.2d 1349, 1351 (Pa. Super. 1990)
(discussing statutory requirements, and evidence needed, to permit an
inference that an appellant unlawfully acquired services). Thus, the proper
inquiry here is whether the Commonwealth presented sufficient evidence that
Appellant more likely than not had access to the tampered electric meter and
derived a benefit from the pilfered utility service.
The trial court summarized the evidence supporting Appellant’s
conviction of theft of services as follows:
Appellant was the only person inside the residence when PECO
employees went to the residence. Business records indicated that
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Appellant ran a business out of the residence. Appellant
acknowledged his debt when he tried to make a deal with
Mr. Senkow, offering to pay half of the money that he owed in
order to have the power reconnected.
Trial Court Opinion, 10/17/19, at 6 (record references omitted). In addition
to these findings, the record demonstrates that Commonwealth witness
John Senkow, a PECO senior security specialist, reviewed the records
pertaining to the subject property and uncovered an internet White Pages
listing for Appellant at 520 Keystone Ave. N.T., 4/9/19, at 157. Mr. Senkow
also referred to documentation reflecting that Appellant called PECO on
September 20, 2018, the day when service was cut, to request that the
electricity be connected. Id. at 159.
Moreover, and most significantly, Officer Takacs, who accompanied the
PECO representatives to the subject property on September 20, 2018, offered
compelling testimony concerning Appellant’s connection to 520 Keystone Ave.
Officer Takacs revealed that when he talked to Appellant in conjunction with
the PECO investigation, Appellant admitted that “he lived on the property for
years.” N.T., 4/9/19, at 170. Officer Takacs also recounted, in his capacity
as a police officer, that he responded to two previous calls at that address,
one in December of 2015 and one in April of 2018. On both occasions,
Appellant was present at the residence. Id. at 168–170. Appellant did not
challenge Officer Takac’s statement concerning Appellant’s residency on
cross-examination. Id. at 170–172.
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This quantum of evidence supports a sustainable inference that
Appellant had access to the foreign electric meter on the subject property and
benefitted from the utility service acquired through the device. Appellant,
therefore, is not entitled to relief on this insufficiency claim.
Appellant’s second and third issues concern the billing history of the
subject property and alleged payments made to PECO on Appellant’s behalf
by the LIHEAP assistance program. Appellant addresses these issues
together, generally contending that the trial court erred when it refused to
allow Appellant to introduce evidence that LIHEAP was paying Appellant’s
PECO bills. Appellant avers that this evidence would demonstrate that he did
not need to steal electricity. Appellant’s Brief at 9.
Our review of this claim is hampered because Appellant does not provide
a record reference to the trial court’s denial of his request to introduce this
evidence or the trial judge’s ruling on his request. An appellant must identify
where in the record an issue was preserved or this Court may deem it waived.
See Pa.R.A.P. 2117(c); 2119(e). For this reason, we conclude that Appellant
has waived the issue pertaining to admission of his PECO bills. See
Commonwealth v. Cole, 167 A.3d 49, 64 (Pa. Super. 2017) (finding waiver
when the appellant failed to identify where in the record an issue was
preserved).
Even if not waived, Appellant’s claim is not supported by the record.
During voir dire, Appellant explained to the trial court that he wanted to
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ascertain if the jurors were acquainted with the LIHEAP program because his
“whole defense was that [LIHEAP] paid for [his] utilities.” N.T., 4/9/19, at 38.
The trial court then instructed Appellant: “Well, you can -- if that’s part of
your defense, you can explain it to them.” Id. This statement cannot be
construed in any fashion as a limitation on Appellant’s right to introduce
evidence of LIHEAP’s payment assistance. The record also discloses that
Appellant cross-examined Mr. Senkow about Appellant’s participation in the
LIHEAP program. N.T., 4/9/19, at 153–156. At no time during this exchange
did the trial court issue a ruling on the admissibility of Appellant’s bills. Id.Another reference to Appellant’s intent to introduce his bills into
evidence occurred after the Commonwealth rested its case. At this point,
Appellant informed the court that he “would like to testify tomorrow so I can
bring in my [PECO] bills,” see N.T., 4/9/19, at 186, and the court
acknowledged this representation. Id. However, on the following day,
Appellant opted not to testify and rested his case without presenting any
evidence. N.T., 4/10/19, at 3. Again, no trial court action precluded the
admission of the LIHEAP evidence.4 Accordingly, Appellant’s second and third
issues are meritless.
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4 If, in fact, the trial court informed Appellant that the only admissible billing
evidence in this regard would be LIHEAP payments between May 2017 and
September 2018, the timeframe of the alleged theft of services, that ruling
would be upheld. The fact that sometime before May of 2017 or after
September 2018 Appellant received LIHEAP assistance for his utility bills
would not be relevant to the prosecution of the instant crime.
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Appellant’s final issue has two components. Appellant first contends
that the verdict slip was incomplete because it did not require the jury to find
that the value of the stolen services exceeded $2,000.00. He then avers that
this deficiency resulted in an illegal sentence. Appellant’s Brief at 10.
Appellant did not object to the verdict slip at trial, see N.T., 4/10/19, at
3, therefore an appellate challenge to its language is waived. See
Commonwealth v. Matty, 619 A.2d 1383, 1387 (Pa. Super. 1993) (holding
that the defendant’s “failure to contemporaneously object to the jury
instructions or the verdict slip . . . operates as a waiver.”). However, Appellant
is also asserting that the jury’s verdict resulted in an improper grading of the
level of the theft of services conviction. Appellant argues that the
Commonwealth failed to prove the value of stolen services and the jury’s
verdict determined only that the amount exceeded fifty dollars. He, therefore,
contends that his conviction should have been graded as a summary offense.5
Appellant’s Brief at 10.
“A claim that the court improperly graded an offense for sentencing
purposes implicates the legality of a sentence.” Commonwealth v.
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5 At his sentencing hearing, Appellant urged that the offense should have
been graded as a misdemeanor of the second degree. N.T. (Sentencing),
6/3/19, at 5–7.
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Mendozajr, 71 A.3d 1023, 1027 (Pa. Super. 2013) (citation omitted).6 While
we reject Appellant’s contention that his conviction should be graded as a
summary offense, see n.8, infra, we nonetheless conclude that sentence
imposed upon the count of theft of services graded as a third degree felony
violates the constitutional principles set forth in Apprendi v. New Jersey,
530 U.S. 466 (2000).7
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6 There exists contrary jurisprudence on whether the grading of an offense
implicates the legality of a sentence. In Commonwealth v. Spruill, 80 A.3d
453 (Pa. 2013), the Pennsylvania Supreme Court addressed “the proper scope
of the illegal sentence doctrine which allows for review of otherwise defaulted
claims.” Id. at 454 (quotation omitted). After review, the high Court
determined that the issue on appeal, i.e., whether the trial court erred by
convicting the appellee of aggravated assault graded as a second-degree
felony where the Commonwealth charged her with aggravated assault as a
first-degree felony, concerned the underlying conviction and did not implicate
the legality of her sentence. Id. at 461.
Herein, Appellant claims the sentence on his theft of services conviction
was illegal because the court improperly graded that offense as a third degree
felony in contravention of the jury’s express finding that the value of the
services stolen “exceeded fifty dollars.” N.T., 4/10/19, at 39; Verdict Slip,
4/10/19, at 1. Appellant pursued a position that the offense should have been
graded as a misdemeanor of the second degree, and not as a third degree
felony at his sentencing. N.T. (Sentencing), 6/3/19, at 5–7. Because
Appellant is complaining about the sentence and is not seeking an arrest of
judgment for this conviction, Spruill is inapposite.
7 In Apprendi, the United States Supreme Court held: “Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490. See also Commonwealth v.
Panko, 975 A.2d 1189, 1191 (Pa. Super. 2009) (citing Apprendi and noting
that “a fact that increases the maximum penalty or changes the grade of an
offense must be submitted to a jury and proven beyond a reasonable doubt.”).
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18 Pa.C.S. § 3926(c) governs grading of theft of services offenses and
reads in relevant part, as follows:
(c) Grading.--
(1) An offense under this section constitutes a summary
offense when the value of the services obtained or diverted
is less than $50.
(2) When the value of the services obtained or diverted is
$50 or more, the grading of the offense shall be as
established in section 3903 (relating to grading of theft
offenses).
18 Pa.C.S. §3926(c)(1)(2).
18 Pa.C.S. § 3903, in turn, provides that theft offenses are graded, in
relevant part, as follows:
(a.1) Felony of the third degree. -- [T]heft constitutes a felony
of the third degree if the amount involved exceeds $2,000 . . . .
* * *
(b) Other grades.--Theft . . . constitutes a misdemeanor of the
first degree, except that if the property was not taken from the
person or by threat, or in breach of fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200 the
offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than $50 the offense constitutes
a misdemeanor of the third degree.
18 Pa.C.S. § 3903(a.1), (b)(1)(2).
While the Commonwealth originally charged Appellant with theft of
services graded as a third degree felony and presented uncontradicted
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evidence that the total value of services obtained was $3,658.00,8 the only
question presented for a determination by the jury was whether the “value of
the services obtained exceeded fifty dollars,” to which the jury answered
“yes.” N.T., 4/10/19, at 39; Verdict Slip, 4/10/19, at 1. The effect of this
verdict merely established that the offense was greater than a summary
offense. See 18 Pa.C.S. § 3926(c)(1) (theft of services is a summary offense
if the value of the services taken is fifty dollars or less). However, the trial
court, without objection by the Commonwealth, failed to present the jury with
the essential questions necessary to elevate the grade of the offense from a
misdemeanor of the second degree to either a misdemeanor of the first
degree, or a felony of the third degree — namely, (1) whether the amount
involved was between $200.00 and $2,000.00, or (2) whether the amount
involved exceeded $2,000.00, respectively. 18 Pa.C.S. § 3903(b), (a.1).
Therefore, in light of Apprendi, we are obligated to conclude that the verdict
on this count only authorized the trial court to sentence Appellant for theft of
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8 Testimony from PECO business analysist David Bucholtz determined that
PECO should have received $2,478.00 from the location had the meter not
been replaced by the unauthorized foreign meter. The total calculation
amounted to $3,658.00, including $1,180.00 for the expense incurred when
PECO cut the taps for safety reasons. N.T. 4/9/19, at 179. Based upon this
undisputed computation, Appellant is incorrect when he states that the theft
of services conviction should have been graded as a summary offense.
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services graded as a misdemeanor of the second degree, the maximum
sentence for which is two years. See 18 Pa.C.S. § 1104(2).9
For the foregoing reasons, we affirm the trial court’s order in part and
remand in part for resentencing, with Appellant’s offense graded as a second
degree misdemeanor rather than a third degree felony.
Judgment of sentence vacated. Case remanded for resentencing
consistent with this Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2020
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9 The two cases cited by the Commonwealth, Commonwealth v. Hanes,
522 A.2d 622, 626 (Pa. Super. 1987) and Commonwealth v. Reiss, 655
A.2d 163, 168 (Pa. Super, 1995), to support its position that the
Commonwealth is not required to establish the precise market value of the
stolen property for purposes of grading an offense, pre-date Apprendi.
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