J-A17011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

ROBERT J. KEARNS

                            Appellee                No. 1682 EDA 2013


              Appeal from the Judgment of Sentence June 4, 2013
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000829-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED NOVEMBER 13, 2015

       The Commonwealth appeals the June 4, 2013, judgment of sentence

imposed after a jury convicted Robert J. Kearns and his co-defendant,

Patrick J. McLaine,1 of theft by failure to make required disposition of funds

received.2    On appeal, the Commonwealth argues the trial court erred in

grading Kearns’ conviction as a misdemeanor of the third degree because


____________________________________________


1
  The Commonwealth has filed an appeal with respect to McLaine at Docket
No. 1685 EDA 2013. Kearns and McLaine have also filed cross-appeals at
Docket Nos. 2480 EDA 2013 and 2600 EDA 2013, respectively. On April 2,
2015, the Commonwealth filed an application for consolidation of all four
companion cases. By per curiam order entered on April 21, 2015, this Court
denied the Commonwealth’s application for consolidation, but directed that
the appeals be listed consecutively.
2
    18 Pa.C.S. § 3927.
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the co-defendants admitted the value of the funds at issue was in excess of

$2,000.00. Based on the following, we affirm.

       The facts and procedural history are as follows. Kearns and McLaine

were the two principals of a company known as Municipal Energy Managers,

Inc. (“MEM”). On July 2, 2007, Kearns and McLaine entered into a written

contract with the Township of Bethlehem, a municipality in Northampton

County (“Bethlehem Township”). The contract provided MEM would act as

an agent for Bethlehem Township to facilitate the purchase of township

street lights from the public utility company, Pennsylvania Power and Light

(“PPL”).3 Kearns and McLaine drafted the contract and determined the total

cost to do all work necessary for Bethlehem Township to purchase the street

lights from PPL. The price of $1,001,230.00 was to be used to pay any and

all costs of the purchase including, but not limited to, paying PPL for the

transfer of the street lights.        The contract provided performance was to

occur within a period of 12 to 18 months, ending anywhere between July 2,

2008 and January 2, 2009, and was considered completed when ownership

of the street lights was transferred from PPL to the township. Additionally,

the contract stated the township would be receiving the lower utility rate by

January of 2009.        For its services, MEM was to receive a five percent

commission of $50,060.00.
____________________________________________


3
   The purpose was to save the township money by accessing a lower utility
rate for municipal-owned streetlights.



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       To begin performance, MEM requested Bethlehem Township pay them

$832,460.00. On July 3, 2007, Kearns and McLaine received a check in the

requested amount. On July 5, 2007, the check was deposited into a general

corporate bank account in the name of MEM, which Kearns and McLaine

jointly controlled.4

       In October 2007, Kearns and McLaine wrote checks from the MEM

general corporate account to themselves. Specifically, on October 1, 2007,

a check was made payable to Kearns for the amount of $366,600.00. That

same day, a check was issued to McLaine in the amount of $499,945.000, as

well as a second check to McLaine in the amount of $109,059.00. All three

checks were signed by both defendants.           At trial, Kearns and McLaine

testified these checks represented bonuses paid to themselves.

       On August 5, 2009, PPL sent a letter to Kearns, stating that it had

learned MEM was performing unauthorized work on its streetlights.         The

letter identified Bethlehem Township as one of the affected municipalities.

       Despite receiving the funds, MEM did not contact PPL to initiate the

transfer of street lights until August 10, 2009, eight months past the 18-

month completion deadline, by sending a letter announcing its intent to

purchase the streetlights.        On September 17, 2009, PPL sent a letter to
____________________________________________


4
  With respect to the contract, there was no escrow requirement that the
Bethlehem Townships funds be held separately from MEM’s other accounts.
See N.T., 1/10/2013, at 162 (“The evidence reveals that the Commonwealth
admits there was no escrow requirement.”).



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MEM, outlining the estimated costs of the total project, which was to be

$271,180.00, well below MEM’s estimate of $1,001,230.00. The letter also

requested MEM make a deposit to PPL in the amount of $22,525.00 in order

to initiate the process of the light transfer.   Kearns and McLaine did not

respond to PPL’s request or make the payment. On October 5, 2009, MEM

sent Bethlehem Township an invoice for $131,438.00. The township did not

pay it.

        In January of 2010, a grand jury investigation was conducted in

relation to the matter.     On January 26, 2012, the grand jury returned a

presentment, recommending the arrest of Kearns and McLaine on the

charges of theft by failure to make required disposition of funds received,

misapplication of entrusted property, and criminal conspiracy.

        A criminal complaint was then filed on February 16, 2012. As noted

above, the two men were tried together. The joint trial began on January 7,

2013.     On January 11, 2013, the jury found Kearns and McLaine guilty of

theft by failure to make required disposition of funds received, but not guilty

of the other two charges.

        On April 12, 2013, and April 19, 2013, McLaine and Kearns,

respectively, were both sentenced to a term of 16 of 60 months’

incarceration, 60 months of probation, and restitution in the amount of

$832,460.00.     The court graded the theft offense as a third-degree felony




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pursuant to 18 Pa.C.S. § 3903 (grading of theft offenses) on the basis that

the value of the theft was in excess of $2,000.00.

       On April 24, 2013, Kearns and McLaine filed motions challenging the

trial court’s grading of the offense as a third-degree felony pursuant to

Apprendi v. New Jersey, 530 U.S. 466 (2000).                       They argued that the

verdict slip could not support a felony conviction because it did not require

the jury to determine the value of the property that gave rise to the

convictions, i.e., the commencement check issued by Bethlehem Township.

The trial court agreed and on May 31, 2013, it granted the motion.

       On June 4, 2013, the court re-sentenced Kearns and McLaine with

regard to the theft offense, grading it as a third-degree misdemeanor, and

ordered them to serve a term of six to 12 months’ incarceration, 60 months’

probation,    a   fine   of   $2,500.00,       and   restitution    in   the   amount   of

$832,460.00. The Commonwealth filed this appeal on June 7, 2013.5

       Subsequently, on June 13, 2013, Kearns and McLaine filed a motion

for reconsideration of sentence. On July 31, 2013, the trial court entered an

order, modifying their sentences to a consecutive period of probation of 12

months rather than 60 months. The remainders of their sentences were not

changed.

____________________________________________


5
   The court did not order the Commonwealth to file a concise statement of
errors complained of on appeal under Pa.R.A.P. 1925(b). On June 14, 2013,
the trial court issued an opinion under Pa.R.A.P. 1925(a).



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        In its sole issue, the Commonwealth complains the trial court erred in

grading Kearns’ conviction on the charge of theft by failure to make required

disposition of funds received as a misdemeanor of the third degree, and

concluding that “the failure to submit a special interrogatory to the jury to

determine the amount of the alleged theft at issue precluded the court from

sentencing” Kearns for his convictions graded as third-degree felonies.

Commonwealth’s Brief at 15. Specifically, the Commonwealth argues “when

a party defendant admits a fact, Apprendi[, supra,] does not require a jury

determination.”      Id. at 16.     Moreover, the Commonwealth contends that

with respect to a theft crime, “the value of stolen items must only be

submitted to a jury when there exists a factual dispute for the jury to

determine.”     Id., citing Commonwealth v. Schamberger, 788 A.2d 408

(Pa. Super. 2001). The Commonwealth maintains the defendants admitted

the value of the misappropriated funds because they never disputed they

received a check in the amount of $832,460.00 from Bethlehem Township,

deposited it into their jointly controlled bank account, and then made

personal disbursements in the form of bonuses. Id. at 19-20. Furthermore,

it asserts Kearns’ trial counsel “made numerous references to the value of

the money paid to defendants and admitted [the] same” 6 and McLaine’s trial

counsel made an admission during his opening statement (“He [Mr. McLaine]
____________________________________________


6
    See Commonwealth’s Brief at 25.




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doesn’t deny that Bethlehem Township paid some money for the acquisition

of the streetlights[.]”7), and offered into evidence two exhibits which

acknowledged and admitted receipt of the $832,460.00 payment from

Bethlehem Township. Id. at 31.

       Lastly, the Commonwealth contends the court “erroneously is of the

view that in order for the ‘admission exception’ of Apprendi to be

applicable, the defendants must actually admit their guilt and that they

committed a crime.”        Id. at 33.     Additionally, it states the court “fails to

understand the distinction between admitting the value of the funds at issue,

but denying any criminal culpability.” Id.

       We begin by noting the grading of an offense implicates the legality of

the sentence.      See Commonwealth v. Tustin, 888 A.2d 843, 845 (Pa.

Super. 2005) (due process constitutional argument was not waived for

failure of defendant to raise it with trial court because it involved grading of

an offense which implicates the legality of the sentence, a non-waivable

sentencing issue).

       Our standard of review is as follows:

       A challenge to the legality of a sentence may be raised as a
       matter of right, is not subject to waiver, and may be entertained
       as long as the reviewing court has jurisdiction. If no statutory
       authorization exists for a particular sentence, that sentence is
       illegal and subject to correction. An illegal sentence must be
       vacated. We can raise and review an illegal sentence sua
____________________________________________


7
    Id. at 31.



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     sponte.   When we address the legality of a sentence, our
     standard of review is plenary and is limited to determining
     whether the trial court erred as a matter of law.

Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa. Super. 2011)

(internal citations and quotation marks omitted).

     In Apprendi, the United States Supreme Court held that the Due

Process Clause of the Fifth Amendment and the notice and jury trial

guarantees of the Sixth Amendment, as applied to the states through the

Fourteenth Amendment, require consideration as follows:

     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. . . . “It is unconstitutional for a legislature to
     remove from the jury the assessment of facts that increase the
     prescribed range of penalties to which a criminal defendant is
     exposed. It is equally clear that such facts must be established
     beyond a reasonable doubt.”

Apprendi, 530 U.S.at 490, quoting Jones v. United States, 526 U.S. 227,

252-253 (1999)).

     In Cunningham v. California, 549 U.S. 270 (2007), the Supreme

Court provided the following supplemental explanation regarding the

Apprendi holding:

     “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 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. When
     a judge inflicts punishment that the jury’s verdict alone does not
     allow, the jury has not found all the facts ‘which the law makes


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       essential to the punishment,’ . . . and the judge exceeds his
       proper authority.”

Cunningham, 549 U.S. at 283, quoting Blakely v. Washington, 542 U.S.

296, 303-304 (2004) (emphasis added).            As mentioned, there is no Sixth

Amendment violation where the defendant admitted the fact in question.

See Commonwealth v. Belak, 825 A.2d 1252, 1256 n.10 (Pa. 2003)

(concluding no Apprendi relief due based upon a failure to submit question

to jury regarding whether victims were home during burglaries and when the

defendant previously stipulated to that fact).

       Turning to the present matter, the sentence at issue was imposed on

Kearns’ conviction of theft by failure to make required disposition of funds

received under Section 3927.8             Section 3903 sets forth the applicable

grading for the theft offenses, in relevant part, as follows:

       (a.1) Felony of the third degree. –

____________________________________________


8
    Section 3927 defines the theft crime as follows:

       A person who obtains property upon agreement, or subject to a
       known legal obligation, to make specified payments or other
       disposition, whether from such property or its proceeds or from
       his own property to be reserved in equivalent amount, is guilty
       of theft if he intentionally deals with the property obtained as his
       own and fails to make the required payment or disposition. The
       foregoing applies notwithstanding that it may be impossible to
       identify particular property as belonging to the victim at the time
       of the failure of the actor to make the required payment or
       disposition.

18 Pa.C.S. § 3927(a).



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     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.

                                      …

     (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:

                                      …

     (2) the amount involved was less than $ 50 the offense
     constitutes a misdemeanor of the third degree.

18 Pa.C.S. § 3903.

     In granting Kearns’ (and McLaine’s) post-sentence motions, the trial

court found the following:

            Here, the Court imposed identical standard range
     sentences based on upon [Kearns’ and McLaine’s] presumptive
     conviction for Theft as a felony of the third degree.      Our
     justification for these sentences, as set forth in the criminal
     information, was [Kearns’ and McLaine’s] conversion of the
     $832,460 commencement check issued by Bethlehem Township.

           During the trial, we directed all of the parties to submit
     proposed jury instructions. The Commonwealth’s proffer did not
     include    Pa.S.S.C.J.I.  15.3903,   and     we   adopted    the
     Commonwealth’s proposed verdict slip without revision or
     objection in our charge.

           The verdict slip itemized the three crimes at issue. The
     second itemized crime, Misapplication of Entrusted Property
     (“Misapplication”), included a supplemental interrogatory
     requiring the jury to determine whether the value of the stolen

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       property was more than $50 or less than $50 upon a finding of
       guilt. The first itemized crime, Theft, did not include a similar
       provision. The jury convicted [Kearns and McLaine] of Theft and
       acquitted them of Misapplication.

              Given the amount of money at stake, it is almost certain
       that, if asked, the jury would have determined that the value of
       the converted property exceeded $2,000, the threshold for a
       conviction of Theft as a felony of the third degree. We can see
       no rational basis upon which the jury could have convicted
       [Kearns and McLaine] of Theft without also finding that the
       property exceeded this threshold value.        Nevertheless, the
       Pennsylvania appellate authority is clear:

          “No matter the volume of evidence presented, nor the
          quality of the evidence, or even a lack of contrary
          evidence, the production of evidence cannot stand as a
          proxy for a specific finding by the factfinder.”
          Commonwealth v. Kearns, 907 A.2d 649, 658 (Pa. Super.
          Ct. 2006).[9]

              “If the preceding were not true, then irrespective of the
       jury’s verdict an acquittal could be set aside if a reviewing court
       concluded that the premise of guilt had been conclusively
       established…. Of course, this is not the law, nor could it be if we
       are to preserve the constitutional right to trial by jury.” Id.

             We are not at liberty to disregard this unambiguous
       declaration from our Superior Court. In the absence of a specific
       jury finding, we are obligated to re-sentence [Kearns and
       McLaine] under the default property value of “less than $50.”
       Commonwealth v. Dodge, 599 A.2d 668 (Pa. Super Ct. 1991).

             Our research discloses two recognized exceptions to this
       rule: stipulations of fact, Commonwealth v. Panko, 975 A.2d
       1189 (Pa. Super. Ct. 2009), and party admissions.
       Commonwealth v. Johnson, 961 A.2d 877 (Pa. Super. Ct. 2008).
       However, neither exception is applicable in this case. It is
       undisputed that, while [Kearns and McLaine] did not contest the
____________________________________________


9
   The defendant in Kearns, supra, is not the same defendant in the
present matter, and there is no indication from the record of any relation.



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     face value of the commencement check, they did not stipulate to
     it or admit to it at any point during the trial.

Order, 5/31/2013, at 6-8.

     In its Rule 1925(a) opinion, the court further opined:

           In the accompanying Statement of Reasons, we
     acknowledged that the jury almost certainly would have
     determined that the value of the converted property exceeded
     $2,000, the threshold for a felony Theft conviction.
     Nevertheless, we concluded that the clear appellate guideline
     required us to re-sentence [Kearns and McLaine] according to
     the default property value of “less than $50.”           See
     Commonwealth v. Kearns, 907 A.2d 649 (Pa. Super. Ct. 2006);
     Commonwealth v. Dodge, 599 A.2d 668 (Pa. Super. Ct. 1991).

            The Commonwealth has taken exception to our conclusion.
     On June 4, 2013, the Commonwealth filed a Motion to Preserve
     Issues for Appeal. Therein, the Commonwealth maintains that
     we erred in not concluding that [Kearns’ and McLaine’s]
     acknowledgment       that    they    received   the    $832,460
     commencement check from Bethlehem Township and deposited
     it into their corporate account was tantamount to a concession
     that they had also converted this sum.         According to the
     Commonwealth, this “admission” obviated the need for the jury
     to determine [] the value of the converted property.

           We submit that our Order and Statement of Reasons is
     both correctly decided and sufficiently comprehensive for
     appellate review.    Nevertheless, we will briefly address the
     assertions raised by the Commonwealth. We respectively submit
     that they misapprehend the question presented.

           [Kearns and McLaine] vigorously protested their innocence
     at every stage of this proceeding. They consistently asserted
     this case is a civil matter for breach of contract rather than a
     criminal matter for conversion of public property.

           At the preliminary hearing stage, we heard and overruled
     [Kearns’ and McLaine’s] motion to dismiss the case on this
     ground.     We concluded, inter alia, that the totality of the
     circumstances supported a prima facie finding of criminal intent
     to defraud.

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             At the trial stage, Attorney Paul Walker argued on behalf of
       Mr. McLaine that Pennsylvania Power & Light had used the threat
       of criminal prosecution to leverage its hardball negotiation
       strategy with MEM. Attorney Walker used the phrase “a different
       courtroom, a different day, different lawyers,” during his opening
       and closing arguments to convey his position that the case
       belonged in civil court, not criminal. Attorney James Swetz
       argued in a similar fashion on behalf of Mr. Kearns.

             Finally, at the post-trial stage, both [d]efendants filed
       motions challenging the sufficiency of the evidence to sustain
       their convictions.    Among other things, they contend the
       Commonwealth’s failure to establish the commencement check
       had to be held in escrow is a ground for acquittal.

              Accordingly, we submit that, far from conceding the value
       of the property giving rise to their convictions, [Kearns and
       McLaine] have steadfastly denied converting any property
       what[so]ever. As such, we submit that the exception for party
       admissions espoused by the Commonwealth is inapplicable to
       this case.

Trial Court Opinion, 6/14/2013, at 2-4 (record citation omitted). We agree

with the court’s finding.

       As indicated above, the court relies on Kearns, supra, to support its

conclusion. In that case, the defendant’s convictions stem from the death of

his girlfriend’s nearly three year-old daughter.            The grading of the

defendant’s crime, involuntary manslaughter, and his sentence were

increased because the victim was less than twelve years old and under the

defendant’s care, custody, or control.10           There was no dispute at trial

____________________________________________


10
     With respect to involuntary manslaughter,

(Footnote Continued Next Page)


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whether the victim was under age twelve or in the defendant’s control. As

such, the age of the victim and the defendant’s status were uncontested and

obviously proven at trial.

      On appeal, the defendant argued that “sentencing him in excess of five

years’ imprisonment on the involuntary manslaughter conviction violated his

Fifth Amendment right to trial by jury as set forth in Apprendi.” Kearns,

907 A.2d at 652.          The Commonwealth responded, in relevant part, by

arguing that “Apprendi was not violated because ‘the Commonwealth

presented uncontradicted testimony at the time of trial that was considered

by the jury that the victim was less than 12 years of age, i.e. two years and

that the victim was in the care, custody and/or control of the Appellant.’”

Kearns, 907 A.2d at 658 (citation omitted).

      A panel of this Court rejected that position, opining:

      [T]he Commonwealth appears to argue that despite the fact that
      the jury did not render an answer to a special interrogatory, “the
      Commonwealth did prove beyond reasonable doubt that [the
      victim] was two (2) years old at the time of her death at the
      hands of [the defendant] and that she was in the care, custody
                       _______________________
(Footnote Continued)

      the offense is deemed a misdemeanor of the first degree except
      where the victim was under 12 years of age and was in the care,
      custody or control of [the perpetrator] at the time the injuries
      were inflicted, in which case the offense is graded a felony of the
      second degree. A misdemeanor of the first degree carries a
      maximum sentence of five years’ imprisonment whereas a felony
      of the second degree carries a maximum sentence of 10 years’
      imprisonment.

Kearns, 907 A.2d at 653.



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      and/or control of [the defendant,] the person who caused her
      death.” The answer to this argument should be apparent. No
      matter the volume of evidence presented, nor the quality
      of the evidence, or even a lack of contrary evidence, the
      production of evidence cannot stand as a proxy for a
      specific finding by the factfinder. If the preceding were not
      true, then irrespective of the jury’s verdict an acquittal could be
      set aside if a reviewing court concluded that the premise of guilt
      had been conclusively established. Indeed, there would be no
      point in proceeding to jury deliberation in some cases. If the
      court concluded at the close of evidence that the defendant’s
      guilt had been “conclusively proven,” the court would be entitled
      to enter a guilty verdict directly. Of course, this is not the law,
      nor could it be if we are to preserve the constitutional right to
      trial by jury. Moreover, it is axiomatic that “the trier of fact,
      while passing upon the credibility of witnesses and the weight of
      the proof, is free to believe all, part, or none of the evidence.”
      Commonwealth v. Watkins, 577 Pa. 194, 843 A.2d 1203,
      1211 (Pa. 2003).       This principle of law relegates the
      factfinding process to the jury, even where the ultimate
      finding seemingly flies in the face of the uncontradicted
      evidence.

Kearns, 907 A.2d at 658 (emphasis added; some citations omitted).

      Additionally, we find Commonwealth v. Johnson, 961 A.2d 877 (Pa.

Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009), instructive. In that

case, a jury convicted the defendant of intimidation of a witness and

specifically found facts, which elevated the grading of the offense to a third-

degree felony.   The trial court then imposed a sentence as though the

conviction were graded as a first-degree felony. The appellant argued that

his sentence “was illegal because the jury had not made a specific finding

with respect to the facts in support of elevating the grading of the offense to

a first degree felony rather than a third degree felony.” Johnson, 961 A.2d

at 881 (footnote omitted). Moreover, he contended “that, in order to change

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the grading of the offense, the jury was required to make a finding regarding

the level of the underlying crime for which the intimidated witness was due

to testify.” Id.

       A panel of this Court affirmed the judgment of sentence after

concluding “there was no need for the jury to make a specific factual finding

regarding the crime to which [the victim] had been a witness” because the

appellant had admitted, through his counsel’s closing argument, the facts

which changed the grading of the crime to a first-degree felony.          Id. at

883.11 The panel pointed to the following evidence:

              Our review of the record further reveals that [the
       a]ppellant’s counsel admitted, during closing argument, to
       certain relevant facts pertaining to [the victim-witness] testifying
       as a witness in relation to the two charges of murder brought
       against [the a]ppellant’s brother. With regard to [the victim-
       witness], [the a]ppellant’s counsel stated: “This is a woman
       who’s testifying against [the appellant’s brother,] in a double
       homicide.     You think word didn’t get back to them that
       somebody tried to kill [the victim-witness]? Sure it did.” [The
       a]ppellant’s counsel further stated: “[The victim-witness] - and
       we admit that [she] testified against [the appellant’s brother]. I
       mean that’s a matter of record. And that’s - in large measure
       that’s what this case is based on.”

____________________________________________


11
    See also Belak, supra (concluding no merit to Apprendi issue based
upon failure to submit question to jury regarding whether victims were home
during burglaries because the appellant previously stipulated to that fact);
Commonwealth v. Panko, 975 A.2d 1189 (Pa. Super. 2009) (determining
no Apprendi relief was due based upon failure to submit jury question
regarding whether theft occurred during a natural disaster because the
appellant had previously stipulated that the governor declared natural
disaster occurred).



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Id. (record citations omitted).

      Here, a review of the record reveals the following.     The defendants

were charged with theft by failure to make required disposition of funds

received as a third-degree felony. Both Kearns and McLaine acknowledged

they received a commencement check from Bethlehem Township in the

amount of $832,460.00 that was deposited into the MEM general checking

account.   See i.e., N.T., 1/9/2013, at 220 (McLaine’s testimony); N.T.,

1/10/2013, at 15-19 (Kearn’s testimony).      Nevertheless, their defense, as

the trial court points out, was that the subject matter of the proceedings was

civil in nature and not criminal.     See N.T., 1/7/2013, at 93-94; N.T.,

1/10/2013, at 167-169.          Moreover, Kearns testified about the work

completed on behalf of the contract and a subsequent stalemate with the

third party, PPL. See i.e., N.T., 1/10/2013, at 57 (“Q: And then [counsel

for Bethlehem Township] asked you the next question on line 11. Where …

did the money received from Bethlehem Township go? And what was your

answer? A: My answer was, we expended it on improvements, on lawyers,

on operational costs, and on fighting PPL, on reimbursing Bethlehem

Township for expenditures above the cap payment, and any improvements

that were made to the system, and to pay for the general operating cost of

MEM.”).

      At the conclusion of trial, the court instructed the jury with respect to

the theft offense as follows:


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           The Defendants have been charged with theft by failure to
     make the required disposition of funds received. To find the
     Defendant guilty of that offense, you must find that each of the
     following three elements has been proven beyond a reasonable
     doubt:

            First, that the Defendant obtained property, in this case
     the funds of Bethlehem Township. One obtains [property] by
     bringing about a transfer or a purported transfer of a legal
     interest in property whether to himself or herself or to another.
     In this case, the property is money.

           Secondly, that the Defendant obtained this property upon
     agreement or subject to a known, legal obligation to make a
     specified disposition thereof, whether from such property or its
     proceeds or from his or their own property to be reserved in an
     equivalent amount.

           Third, that the Defendant intentionally dealt with a
     property obtained as his own and failed to make the required
     disposition. A person acts intentionally if it is his conscious
     object to engage in conduct of a particular nature.

          It is not necessary to identify particular property as
     belonging to the victim at the time of the failure of the
     Defendant to make the required disposition.

           If, after considering all the evidence, you find that the
     Commonwealth has established beyond a reasonable doubt all
     the elements that I have stated to you, you should find the
     Defendant guilty of theft.      Otherwise, you must find the
     Defendant not guilty.

N.T., 1/11/2013, at 26-28. To compare, the court also instructed the jury

on the misapplication of entrusted property as follows:

           The Defendants have been charged with misapplication of
     entrusted property.    To find the Defendants guilty of this
     offense, you must find that each of the following three elements
     has been proven beyond a reasonable doubt:

            First, that the defendant disposed of certain property in
     this case the money of Bethlehem Township.

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J-A17011-15



           Secondly, that the property had been entrusted to him as
     a fiduciary.

          And, third, that the defendant disposed of the property in a
     manner that he knew was unlawful and involved substantial loss
     to Bethlehem Township, the entity for whose benefit the
     property was entrusted.

           After hearing all of the evidence, if you think that the
     Commonwealth has satisfied each of these elements beyond a
     reasonable doubt, you must find the defendant guilty of
     misapplication of entrusted property as charged. If you find the
     defendant guilty of misapplication of entrusted property, you
     should go on to consider whether or not the value of the
     property was more than $50. Certainly in this case the figures
     were more than $50, but that is the statutory requirement.

           If you find that the value of the property was more than
     $50, your verdict should say so. If you find that the value of the
     property was $50 or less, your verdict should also say so.

Id. at 39-40.

     Furthermore, the verdict slip, read, in pertinent part:

     1. On the charge of Theft by Failure to Make Required
     Disposition of Funds, we the jury, impaneled in the above-
     captioned matter, unanimously find the Defendant, Robert J.
     Kearns

                 Not Guilty ____

                 Guilty __X_

     2. On the charge of Misapplication of Entrusted Property,
     we the jury, impaneled in the above-captioned matter,
     unanimously find the Defendant, Robert J. Kearns

                 Not Guilty __X_

                 Guilty ____




                                   - 19 -
J-A17011-15


       If you find the Defendant guilty of Misapplication of Entrusted
       Property, answer question number 2a.           If you find the
       Defendant not guilty of Misapplication of Entrusted Property, go
       on to question number 3.

            2a.   On the charge of Misapplication of Entrusted
       Property, we the jury find the value of the property:

                     was more than $50.00. _____

                     was less than $50.00. _____

Verdict Slip, 1/11/2013, at 1-2 (emphasis in original).

       Contrary to the Commonwealth’s argument, our review of this matter

compels us to conclude the trial court did not err in finding that Apprendi

was violated and Kearns’ theft offense should have been graded as a third-

degree misdemeanor.          The evidence establishes the following:   (1) the

defendants were charged with the theft crime as a third-degree felony; (2)

the court did not instruct the jury that they must make a specific finding that

Kearns and McLaine committed a theft that exceeded $2,000.00, which

would constitute a third-degree felony;12 and (3) the verdict slip did not

____________________________________________


12
     As noted by the trial court, the Commonwealth did not proffer
Pennsylvania Suggested Standard Criminal Jury Instruction 15.3903, which
provides, in relevant part:

       A. Grading Based Upon Value of the Property Taken

       1. If you find the defendant guilty of 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
       [property].

(Footnote Continued Next Page)


                                          - 20 -
J-A17011-15


indicate the jury must make a specific finding that Kearns and McLaine

committed a theft that exceeded $2,000.00.13

       Moreover, this case is distinguishable from Belak and Panko because

the defendants did not stipulate to the theft. Furthermore, unlike Johnson,

Kearns (and McLaine) never specifically admitted, via their own testimony or

their counsels’ opening and closing arguments, to committing a theft in

excess of $2,000. Rather, while counsel, like Kearns and McLaine, may have

acknowledged the two defendants received and deposited an $832,460.00

check, counsel did not admit Kearns and McLaine used the check

“intentionally … as [their] own and fail[ed] to make the required payment or

disposition.” 18 Pa.C.S. § 3927(a).14 As indicated supra, the defendants’

                       _______________________
(Footnote Continued)

       2. First, you should consider whether the Commonwealth has
       established beyond a reasonable doubt that the value of the
       [property] exceeded $2,000.       If you find that it has been
       established, then indicate that on the verdict slip.

Pa.SSJI (Crim) § 15.3903(a).
13
    It merits mention that with respect to the verdict slip, only one crime,
misapplication of entrusted property, included a supplemental interrogatory
requiring the jury to determine whether the value of the stolen property was
more than $50 or less than $50 upon a finding of guilt. The theft crime did
not include a similar provision. In acquitting Kearns of misapplication of
entrusted property, the jury did not make a finding as to whether the value
of the property was in excess of $50.00.
14
     For example, in closing arguments, counsel for Kearns stated:

             Theft by failure to make required disposition of funds
       received requires that the Defendant, in this case Mr. Kearns,
(Footnote Continued Next Page)


                                           - 21 -
J-A17011-15


defense was no conversion took place because the money was placed in a

general business account, commingled with other funds, and that this case

concerned a contract dispute between the parties, not a criminal act.          As

such, the need for a specific finding by the jury regarding the amount of

property taken was necessary.

      We note the Commonwealth contends that Kearns’ and McLaine’s

acknowledgment of the deposit of the $832,460.00 commencement check

should equate to a party admission. However, we reiterate that this Court,

in Kearns, supra, rejected a similar argument and determined that “[n]o

matter the volume of evidence presented, nor the quality of the evidence, or

even a lack of contrary evidence, the production of evidence cannot

stand as a proxy for a specific finding by the factfinder.…                   This

principle of law relegates the factfinding process to the jury, even

where the ultimate finding seemingly flies in the face of the
                       _______________________
(Footnote Continued)

      obtained property. Of course Mr. Kearns obtained property for
      MEM, not Mr. Kearns. Second, that he obtained this property
      upon agreement or subject to a known legal obligation to make
      specified payments from this property, the $832,000. Every
      dollar bill is fungible. Property that is specifically reserved in an
      equivalent amount. That’s what I meant by escrow.

            So you would have to find that the agreement required
      that this actual $832,000 be used as opposed to any other or
      that MEM or Mr. Kearns was required to reserve other money to
      do that by agreement. Doesn’t happen. The escrow was never
      required.

N.T., 1/10/2013, at 163.



                                           - 22 -
J-A17011-15


uncontradicted evidence.” Kearns, 907 A.2d at 658 (emphasis added).

Accordingly, absent a specific finding of fact made by the jury and reflected

in the verdict, we find no merit to the Commonwealth’s argument that the

defendants’ acknowledgement of depositing the commencement check was

sufficient to satisfy the requirements set forth in Apprendi and its progeny.

Based on the lack of such evidence, including an admission or stipulation by

the defendants and a specific finding by the jury, the court originally

imposed an illegal sentence under Apprendi when it graded Kearns’ theft

conviction as a third-degree felony and, therefore, it did not err when it

resentenced him to a third-degree misdemeanor crime.

       Lastly, we note that in a case the Commonwealth relies on,

Commonwealth v. Shamberger, 788 A.2d 408 (Pa. Super. 2001) (en

banc), appeal denied, 800 A.2d 932 (Pa. 2002), a panel of this Court

determined that where a factor “concerns the propriety of the grading of the

offense which thereby establishes the maximum penalty, and not an

enhancement to the sentence beyond the statutory maximum penalty for

the theft offenses, … Apprendi does not apply.”               Id. at 418 n.11.15

However,     it   merits   mention     that    the   Shamberger   Court   discussed

Apprendi in light of the defendant’s ineffectiveness challenge regarding

____________________________________________


15
     This opinion was subsequently reiterated in Commonwealth v.
Chambers, 852 A.2d 1197, 1200 (Pa. Super. 2004), appeal denied, 871
A.2d 188 (Pa. 2005).



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J-A17011-15


counsel’s decision to stipulate to the grading of a theft offense as a first-

degree misdemeanor based on the fact that the thefts were “from the

person” of the victims. Id. at 419-420. The panel held counsel’s strategy

was reasonable because the stipulation that the thefts were from the person

prevented the Commonwealth from proving that the value of the stolen

goods exceeded $2,000.00, which would have elevated the grading of the

offense to a third-degree felony. As such, we find statements that suggest

the principles of Apprendi are not offended when a court classifies an

additional fact not reflected in the verdict as a “grading factor” constitute

dicta and do not govern our consideration of the legality of the sentence

imposed in the present matter. See Kearns, 907 A.2d at 655 (“In arguing

that the key facts that alter the grading of the offense are merely sentencing

factors, the Commonwealth seemingly overlooks the United States Supreme

Court’s stance in Apprendi that labeling facts ‘sentencing factors’ does not

control the issue.”).

      Accordingly, we conclude the Commonwealth’s argument fails, and the

trial court properly vacated Kearns’ original sentence and re-sentenced him

to a third-degree misdemeanor crime.

      Judgment of sentence affirmed.




                                    - 24 -
J-A17011-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2015




                          - 25 -
