Com. v. Zinchini, J. ( 2021 )

J-A11029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFREY WILLIAM ZINCHINI :
:
Appellant : No. 1235 WDA 2020
Appeal from the Judgment of Sentence Entered June 18, 2020
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003003-2015
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED: August 5, 2021
Appellant, Jeffrey William Zinchini, appeals from the judgment of
sentence entered in the Westmoreland County Court of Common Pleas,
following his jury trial convictions for theft by unlawful taking, criminal
mischief, and recklessly endangering another person (“REAP”).1 We affirm.
In its opinion, the trial court sets forth the relevant facts of this case
as follows:
On November 5, 2012, employees of Peoples Gas went to
the area of the Vandergrift Golf Course in order to close off
an abandoned gas service line. After starting to work on the
line, they discovered that several valves were open and that
natural gas was flowing through the line. These valves could
only be opened or closed by using a five-foot long specialty
wrench. Anyone with knowledge and the correct tools can
open the valve. The workers decided to dig further in an
attempt to see whether there was another tap placed on the
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1 18 Pa.C.S.A. §§ 3921(a); 3304(a)(2); and 2705.
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line which allowed the active flow of gas. After digging, they
discovered a manifold with Winfall’s gas meter near the golf
course maintenance building. Service to this line had been
terminated by Peoples Gas on July 17, 2009, after the
Vandergrift Golf Course chose Winfall Energy as its gas
service provider. [Appellant] is the president and treasurer
of Winfall Energy. At the time the service from Peoples Gas
was terminated, the company removed its gas meter and
shut off all valves, thereby terminating the flow of natural
gas through the line. The service line was left in place for
future use should the golf course want to restore Peoples
Gas as its service provider.
About an hour after the workers began digging at the site
with an excavator, [Appellant] appeared and questioned
what the People Gas workers were doing. [Appellant]
advised the Peoples Gas supervisor that, at his direction, his
own workers had installed a three inch “T” in the Peoples
Gas service line in order to connect a Winfall Energy line
with the golf course maintenance building so that gas
service could be provided to the golf course. [Appellant]
testified that on January 3, 2012, a gas leak was detected
at the golf course maintenance building. In an attempt to
fix the leak and restore gas service to the golf course,
[Appellant] testified that he built a T connector between his
line and the Peoples Gas service line. According to the
supervisor, [Appellant] said that he assumed that the
Peoples line was dead and that it would be okay to tap into
it. [Appellant] repeated this assertion in his testimony at
trial. Representatives of the Vandergrift Golf Course
testified that they were not billed by Winfall for work to fix
the gas line to the maintenance building nor did they recall
work being performed on that line.
The Winfall manifold was removed from the service line and
capped at the direction of the supervisor from Peoples Gas.
The next day, [Appellant] called the Peoples Gas supervisor
and apologized for causing them inconvenience. In this
telephone call, [Appellant] again said that he thought it was
an abandoned service line and that he did not know that it
was active or connected to Peoples Gas. According to a
witness from Peoples Gas, a gas service line is considered
to be active until it is capped and abandoned by the
company. This had not been completed when Peoples Gas
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terminated service to the golf course in 2009 although the
meter and valves were locked and shut off.
The Peoples Gas workers also discovered that the line at the
riser which was owned by Winfall Energy and located at the
maintenance building had gas flowing at 11 pounds of
pressure but the Peoples Gas line ran at 38 to 40 pounds of
pressure. They also discovered that a pressure regulator
had been placed on the Winfall manifold. This regulator
reduced the pressure from the gas flowing in the service line
to a lower pressure so that it could provide service to the
inside of the maintenance building. The orientation of the
regulator was to allow gas to flow from the service line into
the Winfall lines at a reduced pressure. An expert presented
by the defense agreed that the pressure regulator as it was
installed in [Appellant]’s system reduced the flow of gas as
it entered [Appellant]’s manifold from the service line.
Additionally, a witness testified that he installed a Kimray
suction pressure regulator on [Appellant]’s compressor at
[Appellant]’s direction. According to the witness, the
Kimray regulator would help to even out high pressure as it
enters [Appellant]’s compressor. In his testimony,
[Appellant] denied that he added a Kimray regulator to his
compressor but acknowledged that he knew how to regulate
pressures in the system so that higher pressure wells can
be brought into his system.
Representatives from the Department of Environmental
Protection (“DEP”) and Gas Analytical Services testified that
[Appellant]’s company submitted reports which reflected a
substantially lower production from [Appellant]’s wells
which contributed to the gas flow to the maintenance
building [than] what was represented by [Appellant] The
representative from the DEP further testified that Winfall
Energy amended its production reports on September 22,
2014, to report productions numbers which were higher
than those previously submitted. [Appellant] acknowledged
in his testimony that these reports were not accurate.
[Appellant] also acknowledged that he met with a detective
from Westmoreland County on August 13, 2014.
One of the owners of a well which contributed to Winfall
Energy’s gas production who received royalties based on
production numbers testified that she never received an
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increase in her payments which would have been consistent
with the increased production numbers reported by Winfall
in its amended report to DEP. A representative from Peoples
Gas testified that the difference between what was reported
through production numbers and what was registered
through Winfall’s meter showing the amounts of gas
delivered to the golf course totaled discrepancies ranging
from $44,568.95 to over one million dollars.
An employee of Peoples Gas explained that the workers had
been placed at risk of fire, explosion or asphyxiation
because they had no prior notice that the gas line, which
was supposed to be closed, had been activated. Gas leaks
create a risk of explosion. [Appellant] acknowledged in his
testimony that natural gas poses a safety threat. This risk
was also acknowledged by the defense expert. [Appellant]
further acknowledged that the purpose of PA One Call is to
ensure safety of workers. A representative from PA One Call
testified that no notifications of excavating activity were
made by Winfall Energy until July 29, 2012.
(Trial Court Opinion, filed October 15, 2020, at 5-8) (internal record citations
omitted).
On December 7, 2018, a jury convicted Appellant of theft, REAP, and
criminal mischief. The court held a restitution hearing on December 12, 2019.
On January 29, 2020, the court entered an order indicating that it would
impose restitution in the amount of $2,000.00 at sentencing. On June 18,
2020, the court sentenced Appellant to 3 years’ intensive supervision with 1
year of home electronic monitoring and a $5,000.00 fine for theft; 2 years’
consecutive probation for REAP; and no further penalty for criminal mischief.2
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2 The court vacated the restitution award on June 18, 2020, concluding that
Peoples Gas did not meet the definition of a “victim” under the version of 18
Pa.C.S.A. § 1106 in effect at the relevant time.
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On that same day, Appellant timely filed a post-sentence motion. The
court denied the motion on October 15, 2020. Appellant timely filed a notice
of appeal on November 9, 2020. The court did not order, and Appellant did
not file, a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
Where the jury has found that the theft has a value of
“between $2,000 and $100,000,” but the jury’s finding does
not comport with any felony-theft crime and the state has
presented no evidence as to value, must the conviction be
vacated?
Where the jury has found that the theft has a value of
“between $2,000 and $100,000,” even though this value
does not comport with any felony-theft crime, the value of
the theft cannot be set at $50.00 but must be set at the
erroneous value chosen by the jury.
Where the jury finds that the theft has a value of “between
$2,000 and $100,000,” but the state has presented no
evidence as to value, the conviction must be vacated[.]
With respect to the conviction of reckless endangerment,
can there be a conviction in the absence of findings or
evidence that there was a mens rea and that the danger
created surpassed the normal danger of everyday life?
(Appellant’s Brief at 6).
For purposes of disposition, we combine Appellant’s first two issues.
Appellant argues that the verdict slip incorrectly allowed the jury to determine
the value of the theft as “between $2,000 and $100,000,” instead of using
the statutory language of “exceeds $2,000.” Appellant claims that under 18
Pa.C.S.A. § 3903 the grading of theft as a felony of the third degree requires
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the value of the stolen item to exceed $2,000. Appellant claims that due to
the wording on the verdict slip, the jury only found that the theft was “between
$2,000 and $100,000,” which is not the same as finding that the value of the
theft “exceeds $2,000.” Appellant reasons that the inaccurate verdict slip may
have resulted in the jury finding that the maximum value of the theft was only
$2,000, which is not an amount that exceeds $2,000. Appellant concludes
that the verdict slip was incorrect, so his theft conviction should not have been
graded as a felony of the third degree, and it must be vacated. We disagree.
As a preliminary matter, we observe the general rule that “the failure to
object to an improper verdict slip before deliberations also waives any
complaint relating thereto.” Commonwealth v. Dorm, 971 A.2d 1284, 1288
(Pa.Super. 2009) (citation omitted). See also Commonwealth v. Matty,
619 A.2d 1383, 1387 (Pa.Super. 1993) (explaining defendant’s “failure to
contemporaneously object to jury instructions or verdict slip… operates as
waiver”). Nevertheless, “[a] claim that the court improperly graded an offense
for sentencing purposes implicates the legality of a sentence[,]” which is non-
waivable, assuming jurisdiction is proper. Commonwealth v. Hoffman, 198
A.3d 1112, 1123 (Pa.Super. 2018); Commonwealth v. Berry, 877 A.2d 479,
482 (Pa.Super. 2005) (explaining court may entertain challenge to legality of
sentence so long as court has jurisdiction to hear claim).
Instantly, Appellant did not object to the verdict slip at trial. (See N.T.
Trial, 12/7/18, at 718). Consequently, any objection to the language used on
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the verdict slip would ordinarily be waived on appeal. See Dorm, supra;Matty, supra. Nevertheless, Appellant’s claims that the wording on the
verdict slip resulted in improper grading of his theft offense implicate the
legality of his sentence. As such, we will address Appellant’s grading
challenge. See Hoffman, supra; Berry, supra.When examining a challenge to the legality of a sentence, our scope and
standard of review are as follows:
A claim that implicates the fundamental legal authority of
the court to impose a particular sentence constitutes a
challenge to the legality of the sentence. Commonwealth
v. Robinson, 931 A.2d 15, 21 (Pa.Super. 2007) (en banc);
Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super.
2003) (en banc). “If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated.”
Commonwealth v. Watson, 945 A.2d 174, 178-79
(Pa.Super. 2008) (quoting Commonwealth v. Leverette,
911 A.2d 998, 1001-02 (Pa.Super. 2006)). When the
legality of a sentence is at issue on appeal, our “standard of
review is de novo and our scope of review is plenary.”
Commonwealth v. Diamond, 945 A.2d 252, 256
(Pa.Super. 2008), appeal denied, 598 Pa. 755, 955 A.2d 356(2008).
Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa.Super. 2010) (en banc).
The Pennsylvania Crimes Code defines theft by unlawful taking or
disposition in relevant part as follows:
§ 3921. Theft by unlawful taking or disposition
(a) Movable property.—A person is guilty of theft if
he unlawfully takes, or exercises unlawful control over,
movable property of another with intent to deprive him
thereof.
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* * *
18 Pa.C.S.A § 3921(a). The Crimes Code defines “movable property” as:
Property 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.
18 Pa.C.S.A. § 3901. “Deprivation” occurs if a person: (1) “withhold[s]
property of another permanently;” or (2) “dispose[s] of the property so as to
make it unlikely that the owner will recover it.” Id.
The value of the stolen property determines the classification of the theft
offense. Commonwealth v. Figueroa, 859 A.2d 793 (Pa.Super. 2004).
Consequently, the burden to establish the value of the stolen property is upon
the Commonwealth. Commonwealth v. Hanes, 522 A.2d 622 (Pa.Super.
1987).
The Crimes Code further sets forth the grading scheme for theft offenses
as follows:
§ 3903. Grading of theft offenses
(a) Felony of the second degree.—Theft constitutes
a felony of the second degree if:
(1) The offense is committed during a manmade
disaster, a natural disaster or a war-caused disaster and
constitutes a violation of section 3921 (relating to theft by
unlawful taking or disposition), 3925 (relating to receiving
stolen property), 3928 (relating to unauthorized use of
automobiles and other vehicles) or 3929 (relating to retail
theft).
(2) The property stolen is a firearm.
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(3) In the case of theft by receiving stolen property,
the property received, retained or disposed of is a firearm.
(4) The property stolen is any amount of anhydrous
ammonia.
(5) The amount involved is $100,000 or more but less
than $500,000.
(a.1) Felony of the third degree.—Except as provided
in subsection (a) or (a.2), theft constitutes a felony of the
third degree if the amount involved exceeds $2,000, or if
the property stolen is an automobile, airplane, motorcycle,
motorboat or other motor-propelled vehicle, or in the case
of theft by receiving stolen property, if the receiver is in the
business of buying or selling stolen property.
(a.2) Felony of the first degree.—Except as provided
in subsections (a) and (a.1), theft constitutes a felony of the
first degree if:
(1) in the case of theft by receiving stolen property,
the property received, retained or disposed of is a firearm
and the receiver is in the business of buying or selling stolen
property; or
(2) the amount involved is $500,000 or more.
(b) Other grades.—Theft not within subsection (a),
(a.1) or (a.2), 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.A § 3903(a), (a.1), (a.2), (b) (emphasis added).
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Thus, a theft constitutes a felony of the third degree if the amount
involved exceeds $2,000. See 18 Pa.S.C.A. § 3903(a.1). “The
Commonwealth is not required to establish the precise market value of the
stolen property. Rather the Commonwealth must present evidence from
which a reasonable jury may conclude that the market value was at least a
certain amount.” Hanes, supra at 625.
Importantly, “the verdict slip exists to record the result of the jury’s
deliberation; it is not the deliberation itself, and the jury’s deliberation is
guided by the court’s charge.” Commonwealth v. Ali, 608 Pa. 71, 119, 10
A.3d 282, 311 (2010). See also Commonwealth v. Johnson, 572 Pa. 283,
318, 815 A.2d 563, 584 (2002) (explaining that, unlike instructions containing
“an articulation of points of law” or legal definitions, trial court merely
instructing jury how to fill out verdict slip, is not construed as prejudicial).
Instantly, the court instructed the jury as follows:
Elements Affecting the Grading of Theft Offenses: Grading,
if you find [Appellant] guilty of the theft on the basis of the
instructions I have just given you, then it will be necessary
for you to make a further determination regarding the value
of the stolen natural gas.
First, you should consider whether the Commonwealth
established beyond a reasonable doubt that the value of the
stolen natural gas is one of the following: $100,000 or
more; more than $2,000, but less than $100,000; more
than $200, but less than $2,000; more than $50, but less
than $200; or less than $50.
(N.T. Trial at 18-19) (emphasis added).
Here, Appellant takes issue with the verdict slip indicating the jury
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needed to find the theft was between $2,000 and $100,000, instead of
expressly stating that the theft needed to exceed $2,000. Nevertheless, the
court made clear in its instruction that the jury had to find the Commonwealth
established beyond a reasonable doubt that the value of the stolen natural
gas was “more than $2,000, but less than $100,000.” See id. Under these
circumstances, the court’s jury instruction cured any deficiency in the verdict
slip, and we see no error with the court’s grading of Appellant’s theft offense
as a third-degree felony. See Ali, supra; Johnson, supra.In his third issue, Appellant argues the Commonwealth failed to provide
any evidence regarding the value of the theft. Appellant claims that the
Commonwealth improperly speculated as to the value of the item taken.
Appellant concludes the Commonwealth presented insufficient evidence to
sustain his theft conviction in the absence of any evidence establishing the
value of what was stolen. We disagree.
When examining a challenge to the sufficiency of evidence, our standard
of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
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fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. 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. Jackson, 215 A.3d 972, 980 (Pa.Super. 2019) (quoting
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011)).
Instantly, the court analyzed the sufficiency claim for theft by unlawful
taking as follows:
[Appellant] initiated the tap-in of his gas line to the service
line connected with the Peoples Gas system. On his own,
[Appellant] created the T configuration which allowed
natural gas from the Peoples Gas system to continue flowing
through the line rather than creating a U or elbow
configuration which would have diverted his own gas into
the service line but blocked any gas coming from Peoples
Gas.
* * *
The records of discrepancies in the reported totals of gas
produced by the wells compared with the amounts
registered in [Appellant]’s meter provide sufficient basis to
value the amount stolen as determined by the factfinder in
this case. Finally, it cannot be denied that [Appellant] and
only [Appellant] benefitted from tapping into Peoples Gas
and re-directing its natural gas into his system to supply the
golf course.
The Commonwealth’s evidence establishes [Appellant]’s
motive for committing a theft of gas, [Appellant]’s expertise
in effectuating the necessary technical accommodations to
commit the crime, [Appellant]’s access to the tools and
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mechanisms required to undertake a theft, and his ability
and opportunity to carry out the theft. Circumstantially, the
evidence allows for the conclusion that when he went out to
investigate a gas leak at the maintenance building in
January 2012, [Appellant] saw an avenue to steal gas from
Peoples Gas and took it.
(Trial Court Opinion at 8-10). The record supports the court’s analysis.
Specifically, our review of the record shows that in 2013, the actual
amount of gas Appellant sold was 13,966 million cubic feet (“MCF”), yet he
only reported selling 363 MCF to DEP. (See N.T. Trial at 336-37). Jeffrey
Scott Nehr, the Vice-President at Peoples Gas explained that this discrepancy
meant that Appellant sold more gas than his records indicated he produced.
(Id. at 347). This extra gas was valued at $44,568.93. (Id.) In other words,
Appellant under-reported his actual sales of gas because he was not producing
that additional gas. Instead, he was stealing it. Thus, the record establishes
that Appellant’s theft of gas allowed him to steal more than $2,000. Viewed
in the light most favorable to the Commonwealth as verdict-winner, the
Commonwealth presented sufficient evidence to sustain Appellant’s conviction
for theft by unlawful taking. See 18 Pa.C.S.A § 3921(a); Jackson, supra.
In his fourth issue, Appellant argues the Commonwealth failed to
establish the requisite mens rea to sustain his REAP conviction. Appellant
alleges that the evidence failed to establish that he acted with malice.
Appellant claims that he did not bear anyone a grudge, nor did he have any
reason to injure anyone. Appellant concludes the Commonwealth presented
insufficient evidence to sustain his conviction for REAP, and this Court should
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reverse his conviction and vacate his sentence. We disagree.
The Crimes Code defines REAP in relevant part as follows:
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if
he recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury.
18 Pa.C.S.A § 2705.
Thus, the crime requires (1) a mens rea of recklessness, (2)
an actus reus [of] some “conduct,” (3) causation “which
places,” and (4) the achievement of a particular result
“danger,” to another person, of death or serious bodily
injury.
Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa.Super. 2003) (quoting
Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa.Super. 1978)).
The mens rea required for REAP is “a conscious disregard of a known
risk of death or great bodily harm to another person.” Commonwealth v.
Klein, 795 A.2d 424, 427-28 (Pa.Super. 2002) (citation omitted). “Serious
bodily injury” is “bodily injury which creates a substantial risk of death or
which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. §
2301. Significantly, REAP “is a crime of assault which requires the creation of
danger” so “there must be an actual present ability to inflict harm.”
Reynolds, supra at 727-28. Mere apparent ability is not enough because
danger, and not the apprehension of danger, must be created. Id. at 728(quoting Trowbridge, supra). What constitutes sufficient evidence for a
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REAP conviction depends on the facts and circumstances of the individual
case. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super. 2009).
Instantly, the court analyzed the sufficiency claim for REAP as follows:
With regard to Count 3, [REAP], the evidence clearly shows
that [Appellant] appreciated that there was a serious and
substantial risk of death or serious bodily injury should there
be a leak of natural gas or should workers mishandle an
active gas line. Additionally, the evidence established that
the workers from Peoples Gas were placed in danger of
death or serious bodily injury when, as a result of
[Appellant’s] conduct, they worked on, dug up, and
excavated a gas line under the impression that it had been
closed off but which, in fact, was active with flowing natural
gas. The only question is whether the identifiable risk to the
Peoples Gas employees should have been recognized by
[Appellant] at the time he reactivated the natural gas
service line and whether [Appellant] disregarded this risk.
A reasonable factfinder could well have concluded, based on
the evidence, that [Appellant] had experience in the field of
natural gas, had an appreciation of the substantial risks
posed to anyone who would have been called to work on the
service line or in the area of the service line without
knowledge that it had been reactivated with gas, and
disregarded those risks in pursuit of a plan to steal gas.
(Trial Court Opinion at 10-11). The record supports the court’s analysis.
Specifically, our review of the record shows that John Znackzko, a
construction supervisor for Peoples Gas, explained the risks created by
Appellant’s action of stealing gas. Mr. Znackzko testified that a worker could
suffer from asphyxiation, or an explosion, or a fire could have occurred. (See
N.T. Trial at 181-82). The evidence showed that Appellant consciously
disregarded a known risk of death or great bodily harm to another person.
See Klein, supra. Viewed in the light most favorable to the Commonwealth
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as verdict-winner, the evidence was sufficient to convict Appellant of REAP.
See Jackson, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2021
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