Commonwealth v. Nellom

234 A.3d 695

COMMONWEALTH of Pennsylvania

v.Frank NELLOM, Appellant

No. 1669 EDA 2019

Superior Court of Pennsylvania.

Submitted December 16, 2019

Filed June 10, 2020

Reargument Denied August 17, 2020.

Frank Nellom, appellant, pro se.

Frederick J. Stollsteimer, District Attorney, Media, for Commonwealth, appellee.

Vram Nedurian, Jr., Assistant District Attorneye, Media, for Commonwealth, appellee.

BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.^*

OPINION BY SHOGAN, J.:

Frank Nellom ("Appellant") appeals pro se from the judgment of sentence entered in the Delaware County Court of Common Pleas, following his jury trial conviction for theft of services.¹ After careful review, we affirm the conviction, but vacate and remand for resentencing.

The trial court summarized the facts adduced at trial, as follows:

On or about September 20 of 2018, [Philadelphia Electric Company ("PECO") ] employees Keith Steger and John Senkow with the assistance of Darby police officer Thomas Takacs responded to 520 Keystone Avenue in Darby due to a complaint from PECO's claims department. (N.T. 04/9/19, p. 110). The house's lights were on when Appellant answered the door. (N.T. 04/9/19, p. 112). Appellant was the only person inside the residence. (N.T. 04/9/19, p. 112). After gaining access to the meter in the basement, Mr. Steger and Mr. Senkow discovered the meter had been altered. (N.T. 04/9/19, p. 113). The meter was a "foreign meter" that did not belong to the house. (N.T. 04/9/19, p. 116). The meter's ring was missing, which posed a risk of causing an "electrical flash." (N.T. 04/9/19, p. 116). The dirt on the meter indicated that it had been left out of the socket until fairly recently. (N.T. 04/9/19, p. 117). In order to safely remove the meter, the service to the house had to be cut from the outside. (N.T. 04/9/19, p. 120). Outside the tap connection that connected power to the house was loose, creating an unsafe environment. (N.T. 04/9/19, p. 123).

At the same time, Appellant tried to barter with Mr. Senkow by offering to pay half of what he owed PECO in return for turning the power back on. (N.T. 04/9/19, p. 134). Sometime later after his power was shut off, Appellant contacted PECO's customer support to have the power put back on as well. (N.T. 04/9/19, p. 136). Investigation into the house at 520 Keystone Avenue determined that while Appellant did not own the house, documentation placed him at the address[,] and his business was being run out of the property. (N.T. 04/9/19, p. 137).

Analytics indicated that the last date the meter took a reading was on May 10, 2017. (N.T. 04/9/19, p. 177). A theft calculation conducted by PECO business analysist David Bucholtz determined that PECO should have received $2,478 from the location had the meter not been tampered with. The total calculation amounted to $3,658 including $1,180 for fees associated with needing to send out a team to cut the taps. (N.T. 04/9/19, p. 179).

At trial, Appellant acted as his own counsel [after an extensive waiver of counsel colloquy]. The trial court advised [Appellant] what acting as his own attorney would entail.

The Court: Okay. Do you understand that errors or mistakes are made by you during this trial, by either the Commonwealth, the [c]ourt or you, and evidence is presented which is improper and you fail to object or to make appropriate motions, then your rights with respect to these errors and mistakes will be lost to you permanently, do you understand that?

[Appellant]: Yes, I understand.

(N.T. 04/9/19, p. 6).

Trial Court Opinion, 10/17/19, at 2–3 (footnote omitted).

Trial commenced on April 9, 2019, with Alex Amoroso, Esq., as standby counsel. On April 10, 2019, the jury found Appellant guilty of one count of theft of services. N.T., 4/10/19, at 39. It further found that the value of the stolen services exceeded $50. Id. On June 3, 2019, Appellant was sentenced on the conviction, graded as a third degree felony, to twenty-one to forty-two months of incarceration, followed by three years of probation. The court also ordered Appellant to pay $3,659.00 in restitution to PECO. After being informed of his appeal rights, including the assistance of counsel on appeal, Appellant filed his pro se notice of appeal on June 18, 2019.²

The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) statement and gleaned the questions complained of on appeal from Appellant's pro se Application for Relief filed in this Court on October 10, 2019.³ The court identified the issues, as follows:

1. The trial court erred by refusing Appellant's request to show jurors his utility bills from when he lived at the 520 Keystone Avenue location where the theft was alleged to have taken place, and current address bills showing the Commonwealth of Pennsylvania through the [Low Income Home Energy Assistance Program ("LIHEAP") ] pays the majority if not all of his electric and gas expenses each year as a result of his being declared disabled since 2015, which is the last time service was in Appellant's name at the 520 Keystone Avenue address. In order to show jurors even if Appellant knew how to place taps in the electrical line two stories high started as the evidence creating the theft, would not risk his life doing so to save his State money. Although, having grown up at the Union League of Philadelphia as a teenager very fond of his state.

2. The trial court erred by after rejecting the over $2,000 evidence needed to prove the third degree felony charged, thereby, required to deem the value less than $50.00 as mandated by 18 Pa. C.S.A. § 3903(c)(3). "When the value of property cannot be satisfactory 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." No authority authorized jurors to be instructed to guess at over or under $50. Since [neither] would prove the over $2,000 amount to establish the third felony charged, and sentenced imposed upon.

3. The trial court erred by failing to instruct jurors that according to 18 Pa.C.S.A. §[3926](d)(1), because the owner of the property has legal possession and access "may be reasonably inferred to have acted to avoid or tamper with the public utility meter or measuring device with the intent to obtain the public utility service without making full compensation" thereof.

4. Evidence was insufficient to support the Verdict Slip finding that Appellant committed theft of Service from on or about May 10, 2017 to on or about September 20, 2018.

Trial Court Opinion, 10/17/19, at 1–2 (verbatim ).

The trial court determined that Appellant's arguments were meritless. Specifically, the trial court concluded that: 1) it was Appellant's responsibility, and not the court's, to introduce his billing records into evidence; 2) the record did not reflect that the trial court rejected evidence of the value of the stolen services; additionally, it was within the trial court's province to instruct the jury; 3) Appellant waived any challenge to the jury instruction; and 4) the trial evidence was more than sufficient to support the guilty verdict. Trial Court Opinion, 10/17/19, at 3–6.

Appellant re-framed the issues in his appellate brief, which we rephrase for sake of clarity:

I. Was the evidence sufficient to demonstrate that: 1) there were unauthorized taps on the outside electric line to the property; and 2) the electric line to the property had been previously cut or disconnected?

II. Did the trial court err by refusing to allow Appellant to introduce evidence of the PECO billing history for the subject property?

III. Did the trial court err by refusing to allow Appellant to introduce evidence that his PECO bills were paid through his participation in the LIHEAP assistance program?

IV. Was the verdict slip deficient because it did not require the jury to make a specific finding as to the value of the stolen services, resulting in an illegal sentence?

V. Was the evidence sufficient to demonstrate that Appellant lived at the subject property?

Appellant's Brief at 3.

Appellant's first and fifth issues allege that the evidence was insufficient to support a theft of services conviction. We review Appellant's challenge under the following precepts:

A challenge to the sufficiency of the evidence is a question of law, subject to plenary review. When reviewing a sufficiency of the evidence claim, the appellate court must review all of the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, as the verdict winner. Evidence will be deemed to support the verdict when it establishes each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. The Commonwealth need not preclude every possibility of innocence or establish the defendant's guilt to a mathematical certainty. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Levy , 83 A.3d 457, 461 (Pa. Super. 2013) (quoting Commonwealth v. Williams , 871 A.2d 254, 259 (Pa. Super. 2005) ).

Section 3926 of the Crimes Code defines the offense of theft of services, as follows:

(a) Acquisition of services.--

(1) A person is guilty of theft if he intentionally obtains services for himself or for another which he knows are available only for compensation, by deception or threat, by altering or tampering with the public utility meter or measuring device by which such services are delivered or by causing or permitting such altering or tampering, by making or maintaining any unauthorized connection, whether physically, electrically or inductively, to a distribution or transmission line, by attaching or maintaining the attachment of any unauthorized device to any cable, wire or other component of an electric, telephone or cable television system or to a television receiving set connected to a cable television system, by making

...