J-S06011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JULES KENNEDY                              :
                                               :
                       Appellant               :   No. 2426 EDA 2019

          Appeal from the Judgment of Sentence Entered July 25, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0000711-2019


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                Filed: March 16, 2020

        Jules Kennedy appeals from the judgment of sentence, entered in the

Court of Common Pleas of Delaware County, following his conviction for theft

by unlawful taking.1 After our review, we affirm.

        The trial court set forth the facts as follows:

        On September 24, 2018, [Kennedy], along with his co-defendant,
        was hired to remove various items from the victim’s home.
        [Kennedy] was paid $600 for his services. The victim also tipped
        [Kennedy] $100. After [Kennedy] and his co-defendant left [the
        victim’s residence], the victim noticed that the container she used
        to store loose change and stray bills was missing. The victim
        immediately contacted [Kennedy], who claimed he did not take it.
        Video surveillance from the same day of the incident at the Giant
        in Broomall showed [Kennedy] and his co-defendant utilizing a
        Coin Star machine. The video depicts [Kennedy] and his co-
        defendant in possession of the victim’s stolen container. Receipts
        indicate that [Kennedy] and his co-defendant used the Coin Star
        machine twice, one transaction for $291.29 with a usage fee of

____________________________________________


1   18 Pa.C.S.A. § 3921(a).
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      $34.57 and another for $558.44 with a usage fee of $66.46.
      [Kennedy] admitted during the trial that he took around “250
      bucks” from the victim’s stolen container after the coins were put
      through the Coin Star machine.

Trial Court Opinion, 10/1/19, at 1-2 (citations omitted).

      On June 19, 2019, following trial, the jury convicted Kennedy of theft

by unlawful taking, graded as a misdemeanor of the first degree. The court

sentenced Kennedy to 19 to 38 months’ imprisonment followed by one year

of probation. See 18 Pa.C.S.A. § 1104(1) (person convicted of misdemeanor

of the first degree may be sentenced to imprisonment for definite term which

shall be not more than five years).   Kennedy filed a timely appeal, in which

he raises one issue for our review: Whether the trial court erred in treating

his theft conviction as a misdemeanor of the first degree when the jury made

no finding as to the value of the theft. See Appellant’s Brief, at 3.

      The gravamen of Kennedy’s claim is that the crime for which he was

convicted should have been graded for sentencing purposes as a third-degree

misdemeanor,     not   a   first-degree   misdemeanor.       He     argues   the

Commonwealth did not prove beyond a reasonable doubt “that the value of

the theft exceeded $200[,]” see Appellant’s Brief, at 5, and the jury did not

make a finding of value. Accordingly, Kennedy claims, the trial court imposed

an illegal sentence by grading the offense as a first-degree misdemeanor.

Kennedy cites to Apprendi v. New Jersey, 530 US. 466 (2000), to support

his argument. After careful review, we find this claim meritless.




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      An error in the grading of an offense implicates the legality of

sentencing. Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super.

2004).   “Such issues are non-waivable.”     Id. (citation omitted).   “[T]he

determination as to whether the trial court imposed an illegal sentence is a

question of law; our standard of review in cases dealing with questions of law

is plenary.” Commonwealth v. Williams, 868 A.2d 529, 532 (Pa. Super.

2005) (citation omitted). Section 3903 of the Crimes Code, “Grading of theft

offenses[,]” provides, in relevant part:

      (b) Other grades.--Theft not within subsection (a), (a.1) or (a.2)
      [felonies of the first, second and third degree], 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(b) (emphasis added).

      Under Section 3903, theft is presumptively graded as a misdemeanor

with the burden placed on the Commonwealth to produce evidence for the fact

finder if it seeks to increase the seriousness of the offense for grading

purposes. Commonwealth v. Dodge, 599 A.2d 668, 672 (Pa. Super. 1991).

When the Commonwealth fails to present sufficient evidence of the value of

the property, we are compelled to presume that the value is less than fifty

dollars, and therefore the theft offense cannot be graded any higher than a


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misdemeanor of the third degree. Id. at 672. See 18 Pa.C.S.A. § 1104(3)

(maximum allowable sentence for third-degree misdemeanors is one year of

incarceration).

      Here, the Commonwealth established, through evidence of the Coin Star

machine receipts and Kennedy’s own testimony, that the value of the stolen

property exceeded $200.00.         See N.T. Jury Trial, 6/19/19, at 115, 206.

Kennedy argues, however, that absent a stipulation of fact, the jury was

required to make a specific finding of value. We disagree.

      In Apprendi, the United States Supreme Court was called upon
      to determine whether a jury finding was required before a penalty
      could be imposed under a New Jersey statute that provided for an
      extended sentence of ten to twenty years in addition to the
      sentence for the underlying offense if the crime was deemed to
      have been a hate crime. The Court held that any fact, other than
      a prior conviction, that enhances the penalty for a crime beyond
      the statutory maximum must be submitted to a jury.

Commonwealth v. Shamberger, 788 A.2d 408, 418 n.11 (Pa. Super. 2001)

(en banc).    In Blakely v. Washington, 542 U.S. 296 (2004), the United

States Supreme Court clarified that a defendant’s sentence can be increased

where the defendant had admitted the existence of the circumstance that

increased the sentence. If a defendant has admitted that a given fact exists,

there is no need for judicial fact finding that results in an increased sentence

in violation of the constitutional right to a jury trial.

      The Blakely Court stated:

      Our precedents make clear . . . that the “statutory maximum” for
      Apprendi purposes is the maximum sentence a judge may
      impose solely on the basis of the facts reflected in the jury verdict

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      or admitted by the defendant. . . . In other words, the relevant
      “statutory maximum” is not the maximum sentence a judge may
      impose after finding additional facts, but the maximum he may
      impose without any additional findings.

Id. at 303-04 (emphasis added). Accord Cunningham v. California, 549

U.S. 270, 274-75 (2007) (citing Apprendi, supra) (“As this Court’s decisions

instruct,   the   Federal   Constitution’s   jury-trial   guarantee   proscribes   a

sentencing scheme that allows a judge to impose a sentence above the

statutory maximum based on a fact, other than a prior conviction, not found

by a jury or admitted by the defendant.”); Commonwealth v. Belak, 825

A.2d 1252, 1256 n.10 (Pa. 2003) (where defendant challenged enhancement

because fact was not submitted to jury, Court found no Apprendi relief due

since defendant stipulated at sentencing that victims were home during

burglaries); Commonwealth v. Johnson, 961 A.2d 877, 881 (Pa. Super.

2008) (“[T]here is no Sixth Amendment violation where the defendant

admitted the fact in question.”); Commonwealth v. Kearns, 907 A.2d 649

(Pa. Super. 2006) (pursuant to Apprendi, factual determinations that

constitute elements of offense of involuntary manslaughter graded as felony

of second degree must be either admitted by defendant or found by jury

beyond reasonable doubt).

      Here, Kennedy was on notice that his charge was graded as a

misdemeanor of the first degree. Both the criminal complaint and the bill of

information list the grading of the offense as a misdemeanor of the first

degree. See Criminal Complaint, 10/30/18; Information, 2/27/19. Further,



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and critical to the disposition here, Kennedy admitted during trial that he took

about “250 bucks” from the victim’s stolen coin container. N.T. Jury Trial,

supra at 206.    There was no judicial fact finding. We conclude, therefore,

that no Apprendi relief is due.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/20




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