J-S22012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    DAVID JOHNSON,

                             Appellant               No. 1381 EDA 2017


         Appeal from the Judgment of Sentence Entered April 17, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011540-2013


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                              Filed July 20, 2018

        Appellant, David Johnson, appeals from the judgment of sentence of an

aggregate term of 2 to 4 years’ imprisonment, imposed after he was convicted

of one count each of theft by unlawful taking and receiving stolen property.

Appellant challenges the sufficiency of the evidence to sustain his convictions

and alleges that his sentence is illegal. We affirm the convictions, but vacate

the judgment of sentence and remand for resentencing.

        Appellant’s convictions stem from an incident that occurred on July 13,

2013. The procedural history of this case has been summarized by the trial

court as follows:


____________________________________________



*   Retired Senior Judge assigned to the Superior Court.
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           On December 17, 2014, a jury convicted Appellant of theft
     by unlawful taking1 and receiving stolen property,2 but [found
     him] not guilty of robbery,3 possessing an instrument of a crime,4
     and simple assault.5 On March 9, 2015, this [c]ourt sentenced
     Appellant to two consecutive terms of one (1) to two (2) years’
     incarceration for his theft convictions, thus imposing an aggregate
     sentence of two (2) to four (4) years’ incarceration. On June 22,
     2015, Appellant filed a Notice of Appeal to the Superior Court. On
     [that same date], the Superior Court dismissed Appellant’s appeal
     because Appellant failed to file a docketing statement pursuant to
     Pa.R.A.P. 3517.
        1   18 Pa.C.S. § 3921(a).
        2   18 Pa.C.S. § 3925(a).
        3   18 Pa.C.S. § 3701(a)(1)(ii).
        4   18 Pa.C.S. § 907(a).
        5   18 Pa.C.S. § 2701(a)(3).

            On November 17, 2015, Appellant filed a petition under the
     Post[ ]Conviction Relief Act (“PCRA”) requesting reinstatement of
     his direct appeal rights. On March 18, 2016, this [c]ourt granted
     Appellant’s petition and reinstated his direct appeal rights. On
     June 20, 2016, Appellant filed a Notice of Appeal to the Superior
     Court, but on August 29, 2016, the Court quashed the appeal as
     untimely filed.

           On October 4, 2016, Appellant filed another PCRA petition
     requesting reinstatement of his direct appeal rights.      PCRA
     counsel, John P. Cotter, Esquire, filed amended petitions on
     October 31, 2016 and November 1, 2016. As well as requesting
     the reinstatement of his direct appeal rights, Appellant alleged
     that his theft convictions “merge,” and that this [c]ourt’s
     imposition of consecutive sentences was therefore illegal.

           On April 17, 2017, following a PCRA hearing, this [c]ourt
     vacated Appellant’s sentence and resentenced him to two (2) to
     four (4) years’ incarceration for his conviction of theft by unlawful
     taking. This [c]ourt ruled that Appellant’s conviction of receiving
     stolen property merged with the conviction of theft by unlawful
     taking.6   This [c]ourt further ordered the reinstatement of
     Appellant’s direct appeal rights.



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            6 …[A]t the PCRA hearing, Appellant also argued that his
            theft convictions should have been graded as third-degree
            misdemeanors rather than first-degree misdemeanors, and
            that his sentence therefore could not exceed a one-year
            term of incarceration pursuant to 18 Pa.C.S.[] § 1104.

Trial Court Opinion (“TCO”), 6/15/17, at 1-2 (citations to record omitted).

      On April 20, 2017, Appellant filed a timely notice of appeal, followed by

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Herein, Appellant presents the following issues for our review:

      I.        Was the evidence sufficient to establish beyond a
                reasonable doubt that [Appellant] committed theft by
                unlawful taking or theft by receiving stolen property when
                the Commonwealth did not prove the elements for these
                offenses beyond a reasonable doubt?

      II.       Was the imposition of a sentence of 2 to 4 years in prison
                illegal because the offenses that [Appellant] was found
                guilty of are third[-]degree misdemeanors which merge for
                the purpose[] of sentencing[,] which means that the
                maximum allowable sentence in this matter [is] 1 year in
                prison?

Appellant’s Brief at 2.

      To begin, we note our standard of review of a challenge to the sufficiency

of the evidence:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).


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      Appellant challenges the sufficiency of the evidence to support his

convictions of theft by unlawful taking and receiving stolen property.         “To

uphold a conviction for theft by unlawful taking, the Commonwealth must

establish the accused ‘unlawfully takes, or exercises unlawful control over,

movable   property   of   another   with   intent   to   deprive   him   thereof.’”

Commonwealth v. Galvin, 985 A.2d 783, 791 (Pa. 2009) (quoting 18

Pa.C.S. § 3921(a)). Receiving stolen property is established “by proving that

the accused ‘intentionally receives, retains, or disposes of movable property

of another knowing that it has been stolen, or believing that it has probably

been stolen, unless the property is received, retained, or disposed of with

intent to restore it to the owner.’” Id. at 792 (quoting 18 Pa.C.S. § 3925(a)).

      Before addressing whether the elements of the above-stated crimes

have been met, we review the facts reflected in the record of the jury trial

which led to Appellant’s convictions, summarized by the trial court as follows:

             The complainant is Mark Baylor (“Mr. Baylor”). Mr. Baylor
      testified that around 4:30 a.m. on July 13, 2013, he was riding
      his bike around his neighborhood when he encountered Appellant
      at 33rd and Huntingdon Streets, in the city and county of
      Philadelphia, Pennsylvania. Appellant approached Mr. Baylor and
      advised that he “like[d]” Mr. Baylor’s wrist watch. While reaching
      into his right waistband area, Appellant said “let me get that”
      watch. Mr. Baylor believed that Appellant reached for a gun
      because he heard a “clicking sound” and saw what appeared to be
      a gun in Appellant’s waistband. Upon hearing what he believed to
      be the cocking of the gun, Mr. Baylor feared for his life and gave
      Appellant his watch. Mr. Baylor testified that he did not know
      Appellant, did not give Appellant permission to take his watch, and
      did not attempt to purchase drugs from Appellant.7




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        7  On cross-examination, Mr. Baylor testified that he
        regularly smokes crack-cocaine and makes money as a
        “personal window cleaner.”

           Mr. Baylor thereafter called 911 and followed Appellant a
     couple of blocks to the area of 33rd and York Streets, where
     Appellant stopped in front of a bus station.8 Police responded
     around fifteen (15) minutes later and arrested Appellant, and Mr.
     Baylor’s watch was ultimately returned to him.
        8 Mr. Baylor twice called 911, and the recorded calls were
        played at trial.

            Police Officer Frederick Straub (Officer Straub) testified that
     he was on patrol in a marked police car on the morning of July 13,
     2013, when he received a radio call directing him to the area of
     33rd and Huntingdon Streets. The call reported a robbery of a
     “gold Guess watch” that was perpetrated by “a black male with a
     gun wearing a black jacket and blue jeans and heading towards
     33rd and York[.]” Officer Straub responded to the location and
     saw Appellant standing at the bus stop, apparently “talking to the
     male next to him.”         Officer Straub exited his vehicle and
     approached Appellant with his gun drawn but held down against
     his side. Appellant looked in the officer’s direction, said “oh shit,”
     and “took a step backwards and away” from the officer. At this
     point[,] Officer Straub then frisked Appellant and recovered a toy
     gun from his jacket pocket and a “gold-colored Guess watch” from
     his pants pocket. Mr. Baylor subsequently identified Appellant as
     “the male who robbed him.” Officer Straub recovered no narcotics
     from Appellant and does not recall recovering any drug
     “packaging” or evidence indicative of drug transactions.9
        9  On cross-examination, Officer Straub testified that
        Appellant did not run or resist arrest and was “relatively
        cooperative,” and that during the frisk he had advised
        Officer Straub of the toy gun in his pocket.

            Appellant also testified, claiming he had obtained Mr.
     Baylor’s watch through deception rather than through gunpoint
     threats.10 Appellant testified that he returned home from work
     around 8:30 p.m. on the previous evening. Around 10:00 p.m.,
     Appellant obtained the toy gun while playing with his nephew, who
     lived in the same area where the incident occurred. Later that
     night/early next morning, Appellant and a companion purloined
     sheetrock sitting outside a nearby church, packaged the sheetrock


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      into small baggies so that it resembled crack-cocaine, and
      endeavored to sell the baggies to unwitting drug users.
         10Appellant was 49 years old at the time of trial. He had
         previously pleaded guilty to two charges of robbery, once in
         1994 and again in 2002.

            Appellant testified that Mr. Baylor “rolled up” around 4:00
      a.m. and “was like anybody have anything[?]” Appellant replied,
      “yeah, I got something,” and gave Mr. Baylor two “dime bags” of
      sheetrock in exchange for Mr. Baylor’s watch. Appellant testified
      that while retrieving the baggies from his pocket he “must have
      pulled … out” the toy gun and “sat it on the truck” against which
      he was leaning. After the transaction, Appellant “pulled [the toy
      gun] off the truck and put it in [his] pocket and that was the end
      of the situation.”

             Appellant further testified that he is familiar with Mr. Baylor
      because Mr. Baylor has lived “in the neighborhood quite a long
      time” and had purchased drugs from Appellant around one week
      prior to the incident.

             At the conclusion of trial, the jury found Appellant guilty of
      theft by unlawful taking and receiving stolen property, but not
      guilty of robbery, possessing an instrument of a crime, and simple
      assault.

TCO at 3-5 (citations to record omitted).

      On appeal, Appellant argues that the evidence was insufficient to prove

beyond a reasonable doubt that he committed theft by unlawful taking or

receiving stolen property. Appellant’s Brief at 5. Rather, Appellant suggests

that “[w]hat the Commonwealth may have proved was theft by deception….”

Id.   After careful review, we discern Appellant’s contentions to be wholly

without merit.

      In response to Appellant’s sufficiency claims, the trial court stated:

            Mr. Baylor testified that Appellant approached him around
      4:30 a.m. While Appellant held what appeared to be a gun inside
      his waistband area, he scrutinized Mr. Baylor’s watch and said “let

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       me get that.” Mr. Baylor heard the gun click as Appellant slightly
       raised the purported weapon from his pocket. Fearing for his
       safety, Mr. Baylor gave his watch to Appellant, who then walked
       away. Mr. Baylor’s testimony sufficed to establish that Appellant
       unlawfully took his watch with the intent to deprive him thereof,
       and knowingly retained the stolen watch, and thus his testimony
       sustains Appellant’s theft convictions.

              Appellant’s version of the incident also sustains his
       convictions. Appellant testified that he was “selling sheetrock” he
       had packaged into baggies to resemble crack-cocaine, and that he
       deceived Mr. Baylor into exchanging his watch for two such
       baggies. Appellant’s own testimony therefore established that he
       unlawfully took Mr. Baylor’s watch with the intent to deprive him
       thereof, and knowingly retained the stolen property.[1] Appellant’s
       sufficiency challenges[,] therefore[,] have no merit.

TCO at 7 (citations omitted). Moreover, “[i]t is well-settled that the jury is

free to believe, all, part or none of the evidence and must determine the

credibility of the witnesses.” Commonwealth v. Orie, 88 A.3d 983, 1017

(Pa. Super. 2014).       Viewing the evidence in a light most favorable to the

Commonwealth, we conclude that the evidence was clearly sufficient to

support the jury’s finding Appellant guilty of theft by unlawful taking and

receiving stolen property. Therefore, we uphold Appellant’s convictions.

       Next, Appellant argues that his sentence is illegal. The gravamen of his

claim is that the crimes for which he was convicted should have been graded

as third-degree misdemeanors rather than first-degree misdemeanors.

Appellant’s Brief at 7.     We agree and remand for resentencing.

       Issues relating to the legality of a sentence are questions of law for

which our standard of review is de novo and our scope of review is plenary.
____________________________________________


1Theft by unlawful taking is a lesser included offense of theft by deception.
Commonwealth v. Goins, 867 A.2d 526, 531 (Pa. Super. 2004).

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Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014). 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.

       “The Commonwealth has the burden of producing evidence of value

which is used to determine the grade of offense.”         Commonwealth v.

Walentoski, 446 A.2d 1300, 1303 n.2 (Pa. Super. 1982).2              Here, the

____________________________________________


2Section 3903 of the Crimes Code governs the grading of theft offenses, and
provide, in relevant part, as follows:

       § 3903. Grading of theft offenses.

                                       ***
       (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.

       (c) Valuation.—The amount involved in a theft shall be
       ascertained as follows:

              (1) Except as otherwise specified in this section, value
              means the market value of the property at the time and
              place of the crime, or if such cannot be satisfactorily
              ascertained, the cost of replacement of the property within
              a reasonable time after the crime.

              ***



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Commonwealth presented no evidence regarding the watch’s value. 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 must grade the offense as a third-degree misdemeanor.                    See

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

maximum allowable sentence for third-degree misdemeanors is now one year

incarceration. See 18 Pa.C.S. § 1104(3).

       According to the trial court,

       there was no testimony concerning the value of Mr. Baylor’s
       watch[] and[,] thus[,] unless the item was “taken from the person
       or by threat,” Appellant’s thefts are third-degree misdemeanors.
       Although Mr. Baylor testified that Appellant took his watch by
       threat of gun, Appellant testified that he stole the item through a
       scam (i.e. a “flim flam”). As in [Commonwealth v.] Monroe,
       [678 A.2d 1208 (Pa. Super. 1996),] “both versions of the story”
       sustain the convictions but only the complainant’s version
       supports grading the crimes as first-degree misdemeanors.
       However, the jury received no instruction and made no finding on
       this issue, and found Appellant not guilty of robbery committed by
       threat of bodily injury.

TCO at 11-12.


____________________________________________


              (3) When the value of property cannot be satisfactorily
              ascertained pursuant to the standards set forth in
              paragraphs (1) and (2) of this subsection its value shall be
              deemed to be an amount less than $50. Amounts involved
              in thefts committed pursuant to one scheme or course of
              conduct, whether from the same person or several persons,
              may be aggregated in determining the grade of the offense.

18 Pa.C.S. § 3903(b) and (c).



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      The trial court further acknowledged:

      “[I]n disputed cases, the determination of whether property was
      taken from the person for purposes of grading the offense
      normally would be a question for the jury, just as the value of
      stolen     items,   when    disputed,    is  a   jury   question.”
      [Commonwealth v.] Shamberger, 788 A.2d 408, 418 [(Pa.
      Super. 1999)]; see also Commonwealth v. Sparks, 492 A.2d
      720, 724 (Pa. Super. 1985) (“As to grading of other theft offenses,
      it is clear that value becomes determinative and this, too, is a
      factual question, which has been regarded as a jury question,
      although it is not an element of the crime…. During jury trials[,]
      it is the custom to charge the jury that one of its functions is to
      establish the value of the goods stolen so that the court can
      determine the grade of the offense for sentencing purposes.”)
      (emphasis in original) (citing Pa. SSJI (Crim), § 15.3903). Since
      the Commonwealth presented no evidence of the watch’s value,
      and since the jury made no finding that the watch was taken from
      the person as contemplated by 18 Pa.C.S.[] § 3903, the theft
      convictions should have been graded as third-degree
      misdemeanors.

TCO at 12. Accordingly, the trial court concluded that “Appellant’s challenges

to the sufficiency of the evidence should be denied, but Appellant’s sentence

should be vacated and the matter should be remanded for resentencing.” Id.

      Based on the foregoing, we uphold Appellant’s convictions for theft by

unlawful taking and receiving stolen property, but vacate the April 17, 2017

judgment of sentence and remand for resentencing in accordance with this

memorandum.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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