J-S32020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KEITH CONRAD,

                            Appellant               No. 1659 WDA 2014


            Appeal from the Judgment of Sentence of May 20, 2014
              In the Court of Common Pleas of Clearfield County
             Criminal Division at No(s): CP-17-CR-0000853-2013


BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 03, 2015

       Appellant, Keith Conrad, appeals from the judgment of sentence

entered on May 20, 2014, following his jury trial conviction for theft by

failure to make required disposition of funds received.1    Upon review, we

affirm Appellant’s conviction, but remand for resentencing on restitution.

       We briefly summarize the facts and procedural history of this case as

follows. Appellant is a home improvement contractor.       Ronald Ferry hired

Appellant to install, inter alia, a geothermal heating system at Mr. Ferry’s

residence. The Commonwealth charged Appellant with the aforementioned

crime, as well as deceptive or fraudulent business practices2 when Appellant
____________________________________________


1
    18 Pa.C.S.A. § 3927.
2
    18 Pa.C.S.A. § 4107.
J-S32020-15



purportedly accepted payment and did not complete services.       On April 9,

2014, a jury convicted Appellant of theft by failure to make required

disposition of funds and acquitted him of deceptive or fraudulent business

practices.    On May 20, 2014, the trial court sentenced Appellant to six

months to one year of incarceration, followed by two years of probation.

The trial court also ordered Appellant to pay $22,686.84 to Boyer

Refrigeration and $4,806.20 to Mr. Ferry as restitution. This timely appeal

resulted.3
____________________________________________


3
   Appellant filed a post-sentence motion on May 29, 2014. The trial court
held a hearing on Appellant’s post-sentence motion on June 5, 2014. The
trial court issued an order and opinion on August 26, 2014, denying counts V
and VII of Appellant’s post-sentence motion, which dealt with issues
pertaining to recusal. The trial court did not address Appellant’s remaining
claims at that time. On September 25, 2014, Appellant filed a notice of
appeal. On September 26, 2014, Appellant’s post-sentence motion was
denied by operation of law. Although the notice of appeal was premature,
because the trial court had not ruled on the post-sentence motion in its
entirety, the appeal was perfected once the remaining counts were denied
by operation of law. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”). On
September 26, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.
Appellant timely complied, raising some of the claims he raised previously by
way of post-sentence motion, but which were not addressed by the trial
court. On November 17, 2014, the trial court advised this Court that it
would rely on its August 26, 2014 opinion regarding the issues presented on
appeal. On June 9, 2015, this Court issued a memorandum decision
remanding the case back to the trial court for the preparation of an opinion
pursuant to Pa.R.A.P. 1925(a) that addressed all of the issues raised in
Appellant’s concise statement of errors complained of on appeal under
Pa.R.A.P. 1925(b). The trial court filed a supplemental opinion on June 24,
2015.




                                           -2-
J-S32020-15



        Appellant presents the following issues4 for our consideration:

          I.     Whether the lower court erred in sustaining the
                 verdict of guilty where the Commonwealth failed to
                 present sufficient evidence at trial to support a jury
                 finding that [Appellant] obtained the relevant property
                 “upon agreement, or subject to a known legal
                 obligation, to make specified payments or other
                 disposition.”

          II.    Whether the lower court erred by issuing an order of
                 restitution in the amount of $4,806.20 to Ronald
                 Ferry, where the restitution related to the charge of
                 deceptive business practices for which [Appellant] was
                 acquitted by a jury.

          III.   Whether the trial court erred by misapplying the
                 sentencing guidelines when it assigned an offense
                 gravity score of (6) and used the same in calculating
                 the guideline sentence, where the offense involved a
                 monetary value of less than $25,000[.00].

Appellant’s Brief at 5 (complete capitalization and suggested answers

omitted).

        In the first issue, Appellant contends that the Commonwealth did not

present sufficient evidence to support his conviction for theft by failure to

make required disposition of funds received.        Appellant’s Brief at 26-31.

More specifically, Appellant argues, “where a construction contract does not

require the specific disposition of funds, payments made to the contractor

become the property of the contractor at the time of transfer.” Id. at 26.

Appellant claims “he completed approximately ninety-five (95) percent of

____________________________________________


4
    We have reordered and renumbered the issues for ease of discussion.



                                           -3-
J-S32020-15



the contracted work” over the course of “numerous months” and “it was only

after his business began to financially spiral that [Appellant] ceased work on

the contract.”   Id. at 28. Thus, he contends, there was no evidence that

established Appellant fraudulently obtained the advanced funds at the

inception of the contract. Id. at 27. Further, Appellant claims “the record

does not support a finding that [he] obtained any funds from Mr. Ferry that

were subject to a specific obligation to reserve a specific portion for payment

of the geothermal system[.]” Id. at 31.

      Our standard of review is well-settled:

        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
        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
        finder 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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citation

omitted).



                                     -4-
J-S32020-15



      The legislature defines theft by failure to make required disposition of

funds received 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.A. § 3927(a).

      We have previously determined:

        Section 3927(a) requires a person who accepts money or
        property of another pursuant to an agreement to meet the
        obligations of the agreement. An agent who has received
        funds subject to an obligation to make a required payment
        may commingle funds if he so chooses without penalty as
        long as the obligation for which the money or property is
        entrusted is met in a timely fashion. The language of the
        statute, that a person is guilty of theft by failure to make
        required disposition of funds if he ‘deals with property as his
        own,’ does not require that the defendant actually use the
        property of another. The word ‘deals’ means that the
        defendant took the property designed for a specific use and
        used it as if it were his or her own property.

Commonwealth v. Veon, 109 A.3d 754, 773-774 (Pa. Super. 2015)

(citations and quotations omitted) (emphasis in original).

      The Commonwealth produced the following evidence at trial. Mr. Ferry

testified that he contracted with Appellant to build an efficient, economical,

and environmentally friendly second home on property Mr. Ferry owned near


                                     -5-
J-S32020-15



Treasure Lake. N.T., 4/9/2014, at 27. Mr. Ferry was interested in installing

a geothermal heating unit at the home. Id. He entered into a contract with

Appellant “to construct a three-bedroom, two-bath home with about 1500

square feet and the heat source would be geothermal-based.”       Id. at 30.

Under the written terms of the contract, the proposed cost of construction of

the house was $155,000.00, with an additional cost of $28,358.54 for the

geothermal unit. Id. at 42.    Mr. Ferry paid Appellant the entire amount due

under the contract in nine payments, including an additional $11,387.35 for

purported overages not covered under the contract, and Mr. Ferry did not

make direct payment to Charles Scott Boyer, owner of Boyer’s Refrigeration,

Heating and Air Conditioning.    Id. at 33-34, 43-53. Boyer’s Heating and

Cooling installed the geothermal unit in the new house. Id. at 34.

Thereafter, Mr. Boyer contacted Mr. Ferry to inquire as to whether Mr. Ferry

paid Appellant for the unit. Id. at 34. Subsequently, Mr. Ferry confronted

Appellant “multiple times” about payment to Mr. Boyer and Appellant said

“he was taking care of it.” Id. at 35.   The house was never completed and

Mr. Boyer was not paid. Id. at 36. Mr. Boyer filed a mechanic’s lien against

Mr. Ferry’s property for $28,074.95. Id. at 38.

      The Commonwealth also presented the testimony of Mr. Boyer.        Mr.

Boyer testified he installed a geothermal system in Mr. Ferry’s house at

Appellant’s request. Id. at 64-66. Mr. Boyer and Appellant entered into a

written contract beforehand.     Id. at 71-72.    The cost was a little over

$28,000.00 and Appellant made one initial payment of “just a little over

                                     -6-
J-S32020-15



$2,800.00” to Mr. Boyer, representing 10% of the total cost of the

geothermal unit.    Id. at 66.   Mr. Boyer invoiced and communicated with

Appellant multiple times after installation of the heating unit was almost

complete, in an effort to receive payment of the remaining balance. Id. at

66-67.    Mr. Boyer testified that he asked Appellant if Mr. Ferry paid

Appellant. Id. at 68. Appellant admitted to Mr. Boyer that Mr. Ferry had

paid him, but “said [Appellant] had spent it elsewhere.”      Id. at 68.   Mr.

Boyer attempted to secure financing for Appellant, but Appellant did not

follow through. Id. Mr. Boyer testified that Appellant “acknowledged that

he didn’t intend to pay [Mr. Boyer], it wasn’t [Appellant’s] intention, [and]

he didn’t have the money[.]” Id. at 69.

       Appellant testified on his own behalf. Appellant confirmed the contract

prices, conceded that Mr. Ferry paid him in full, and acknowledged he did

not pay Mr. Boyer.     Id. at 96-99, 123, 150.      Appellant agreed that he

contracted directly with Mr. Boyer and that Mr. Ferry expected Appellant to

pay Mr. Boyer. Id. at 148-149. Appellant had one bank account that he

used for multiple construction contracts and no method of accounting for the

individual jobs. Id. at 145-147. Appellant paid himself, $700.00 per week,

from that account which contained the deposits from Mr. Ferry. Id. at 134-

136.

       Upon review of the record, viewing it in the light most favorable to the

Commonwealth as our standard requires, we conclude that there was

sufficient evidence to support Appellant’s conviction.     Appellant accepted

                                     -7-
J-S32020-15



money from Mr. Ferry based upon a contract the parties entered.             The

contract specifically called for the installation of a geothermal unit and

specifically named Boyer Refrigeration, Heating, and Air Conditioning as the

entity to perform the work. Mr. Ferry paid Appellant in full for the entirety of

the work to be completed, including installation of the geothermal unit.

Appellant commingled funds from multiple construction jobs, including the

one at issue here, into one bank account, but then never met his obligation

to pay Mr. Boyer. Appellant accepted funds under the agreement with Mr.

Ferry and, instead of meeting his obligations under the agreement in a

timely fashion, used those funds as if they were his own property. For all of

the foregoing reasons, we discern no abuse of discretion in finding sufficient

evidence to support Appellant’s conviction for theft by failure to make

required disposition of funds received.

      In Appellant’s last two issues, he claims that the trial court misapplied

the sentencing guidelines when it assigned an inappropriate, higher offense

gravity score in fashioning Appellant’s sentence on his conviction for theft by

failure to make required disposition.         Appellant’s Brief at 8.      More

specifically, Appellant argues that since he was acquitted of deceptive

business practices, the trial court erred in ordering restitution in the amount

of $4,806.20 to Mr. Ferry. Id. at 9.    Appellant argues that his conviction for

theft by failure to make the required disposition of funds supported only the

$22,686.84 restitution award to Boyer Refrigeration. Thus, he contends:




                                       -8-
J-S32020-15


        Theft by failure to make required disposition of funds is
        subcategorized within the sentencing guidelines according
        to the monetary value involved in the offense. Where the
        offense involved a monetary value amount between
        $2,000[.00] and $25,000[.00], the appropriate offense
        gravity score is five (5). Where the offense involved a
        monetary      amount      between       $25,000[.00]   and
        $100,000[.00], the appropriate offense gravity score is six
        (6). Here, the offense for which [Appellant] was convicted
        involved a monetary amount of $22,686.84, making the
        appropriate offense gravity score five (5).

        Furthermore, due to the miscalculation of the offense
        gravity score, [Appellant] was sentenced according to an
        inaccurate standard range. The standard range for an
        offense gravity score of five (5) and a prior record score of
        zero (0) is RS (restorative sanctions) to nine (9) months of
        incarceration. However, the standard range for an offense
        gravity score of six (6) and a prior record score of zero (0)
        increases to three (3) to twelve (12) months of
        incarceration.   Although [Appellant’s] minimum term of
        incarceration of six (6) months could have been imposed
        under either standard range, that does not prevent
        [Appellant] from raising the present challenge to the
        misapplication of the sentencing guidelines.

Id. at 15 (some capitalization omitted).

      In sum, in his last two issues on appeal, Appellant avers that the trial

court erred by ordering restitution on the acquitted charge of deceptive

business practices.    Appellant further argues that this error, in turn,

improperly inflated the monetary value of Appellant’s offense under the

sentencing guidelines and affected the offense gravity score used by the trial

court to determine the applicable guideline range for theft by failure to make

required disposition of funds received.

      First, we address the restitution issue:




                                     -9-
J-S32020-15


        Upon conviction for any crime wherein property has been
        stolen, converted or otherwise unlawfully obtained, or its
        value substantially decreased as a direct result of the crime,
        or wherein the victim suffered personal injury directly
        resulting from the crime, the offender shall be sentenced to
        make restitution in addition to the punishment prescribed
        therefor.

18 Pa.C.S.A. § 1106(a). “Challenges to the appropriateness of a sentence of

restitution are generally considered challenges to the legality of the

sentence.”    Commonwealth v. Langston, 904 A.2d 917, 921 (Pa. Super.

2006) (citation omitted). Our standard of review in determining the legality

of a sentence is as follows:

        If no statutory authorization exists for a particular sentence,
        that sentence is illegal and subject to correction. An illegal
        sentence must be vacated. In evaluating a trial court's
        application of a statute, our standard of review is plenary
        and is limited to determining whether the trial court
        committed an error of law.

Commonwealth v. Hall, 994 A.2d 1141, 1144 (Pa. Super. 2010) (citation

omitted).

      On this issue, the trial court “agrees” that it “erred in ordering

[Appellant] to pay $4,806.20 to Mr. Ferry in restitution.”         Trial Court

Opinion, 6/24/2015, at 4.      Upon review, we also agree.       Section 1106

provides for restitution upon conviction of a crime involving property. Here,

ordering restitution on the deceptive business practices charge, upon which

the jury found Appellant not guilty, was illegal.   “If this Court determines

that a sentence must be corrected, we are empowered to either amend the

sentence directly or to remand the case to the trial court for resentencing.”



                                    - 10 -
J-S32020-15



Commonwealth v. Benchoff, 700 A.2d 1289, 1294 (Pa. Super. 1997); see

also Commonwealth v. Dobbs, 682 A.2d 388, 392 (Pa. Super. 1996)

(noting that while this Court has the option of amending an illegal sentence

directly or remanding it to the trial court for re-sentencing, “[i]f a correction

by this [C]ourt may upset the sentencing scheme envisioned by the trial

court, the better practice is to remand.”); compare Commonwealth v.

Gentry, 101 A.3d 813, 818 (Pa. Super. 2014) (trial court order imposing

restitution of $1.00, until later evidence of the exact amount of restitution

due was provided by the Commonwealth, found illegal; case remanded

because restitution was proper, but not accurate, and the overall sentencing

scheme was upset.).

         In this case, we vacate the portion of Appellant’s sentence ordering

restitution to Mr. Ferry and remand for resentencing.       We have upset the

sentencing scheme in this case by vacating the portion of restitution to Mr.

Ferry.      As recited above, the geothermal unit cost $28,358.54 and Mr.

Boyer received a payment of $2,835.85. Hence, $25,522.69 was still due to

Boyer Refrigeration.     However, the trial court ordered restitution to Boyd

Refrigeration in the amount of $22,686.84. We are unable to reconcile the

balance still due and owing to Boyer Refrigeration with the trial court’s actual

restitution order to that entity. We note, however, that it appears from the

record that the trial court may have factored the restitution not properly due

to Mr. Ferry in its assessment of the restitution due to Boyer Refrigeration.




                                     - 11 -
J-S32020-15



Hence, we vacate those portions of Appellant’s sentence pertaining to

restitution and remand for resentencing.

      Next, Appellant challenges the trial court’s assignment of an offense

gravity score of six to his conviction in sentencing him to a term of

imprisonment.    Appellant’s claim implicates the discretionary aspects of

sentencing.   See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.

Super. 2012) (en banc) (Appellant argued trial court abused its discretion in

applying an offense gravity score of eight in calculating the guideline

ranges).

        A challenge to the discretionary aspects of a sentence must
        be considered a petition for permission to appeal, as the
        right to pursue such a claim is not absolute. When
        challenging the discretionary aspects of the sentence
        imposed, an appellant must present a substantial question
        as to the inappropriateness of the sentence. Two
        requirements must be met before we will review this
        challenge on its merits. First, an appellant must set forth in
        his brief a concise statement of the reasons relied upon for
        allowance of appeal with respect to the discretionary
        aspects of a sentence. Second, the appellant must show
        that there is a substantial question that the sentence
        imposed is not appropriate under the Sentencing Code. That
        is, the sentence violates either a specific provision of the
        sentencing scheme set forth in the Sentencing Code or a
        particular fundamental norm underlying the sentencing
        process.

Id.   In this case, Appellant has complied with the prerequisites. Moreover,

we previously determined that a claim that the trial court abused its

discretion in applying an offense gravity score raises a substantial question.

Id. Hence, we will examine Appellant’s claim.



                                    - 12 -
J-S32020-15



     Our standard of review is as follows:

       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on
       appeal absent a manifest abuse of discretion. In this
       context, an abuse of discretion is not shown merely by an
       error in judgment. Rather, the appellant must establish, by
       reference to the record, that the sentencing court ignored or
       misapplied the law, exercised its judgment for reasons of
       partiality, prejudice, bias or ill will, or arrived at a manifestly
       unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014).

     Here, the trial court explained:

       [Appellant] argues that the sentencing [c]ourt abused its
       discretion in assigning an offense gravity score of six to his
       conviction.     Plainly stated, Appellant’s argument fails.
       Furthermore, even if [Appellant] is correct that the
       sentencing [c]ourt used the wrong offense gravity score; it
       is of no effect because the sentence imposed is with[in] the
       standard range of either an offense gravity score of five or
       six.

       For first time offenders, the crime of theft by failure to
       make required disposition of funds received carries an
       offense gravity score of five for an offense involving a
       monetary value between $2,000.00 and $25,000.00; and
       an offense gravity score of six for an offense involving a
       monetary value of $25,000.00 to $100,000.00. See 204
       Pa. Code § 303.15. With an offense gravity score of five
       and prior record score of zero, Pennsylvania’s sentencing
       guidelines suggest a standard range of restorative sanctions
       (RS) to nine months of incarceration. With an offense
       gravity score of six and a prior record score of zero,
       Pennsylvania’s sentencing guidelines suggest a standard
       range of three months of incarceration to 12 months of
       incarceration. In either event, a six[-]month incarceration
       sentence is within the standard range of either offense
       gravity score.




                                     - 13 -
J-S32020-15


          [Appellant’s] offense gravity score is properly calculated at
          six because he was given $28,358.54 for the geothermal
          system; less the 10% payment he made of $2,835.85;
          leaving a remaining balance of $25,522.69. This warrants
          an offense gravity score of six as it is within the $25,000.00
          to $100,000.00 range. However, in practical terms, it is of
          no effect whether his offense gravity score was calculated at
          five or six because his six[-]month sentence is within the
          standard range for both offense gravity scores.

Trial Court Opinion, 6/24/2015, at 2-3.

        Appellant argues “the monetary amount at issue was $22,686.84,

making the appropriate offense gravity score a five (5) rather than a six

(6).”    Appellant’s Brief at 18.   However, as set forth above, the record

suggests otherwise. Again, the parties agree the cost of the geothermal unit

was $28,358.54 and Appellant paid Mr. Boyer 10% of the total amount

owed. Hence, the trial court’s assessment that the remaining balance owed

totaled $25,522.69 was accurate. Accordingly, the application of an offense

gravity score of six was proper. Hence, we discern no abuse of discretion.

        Moreover, Appellant concedes that the sentence imposed fell within

the guideline ranges under either an offense gravity score of five or six. See

Appellant's Brief, at 15. We note, “where a sentence is within the standard

range of the guidelines, Pennsylvania law views the sentence as appropriate

under the Sentencing Code.”         Lamonda, 52 A.3d at 372.          Here, the

monetary value was just slightly over the $25,000.00 line. The trial court

imposed a sentence that overlaps the standard range of sentences under

either an offense gravity score of five or six.       We discern no abuse of

discretion.


                                      - 14 -
J-S32020-15



      Judgment of sentence affirmed.          Remand for resentencing on

restitution. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/3/2015




                                     - 15 -
