Commonwealth v. Nunez-Hurtado

1

COMMONWEALTH OF PENNSYLVANIA Appellee v. IVAN GUADALUPE NUNEZ-HURTADO Appellant

No. 1071 EDA 2022

No. J-S04029-23

Superior Court of Pennsylvania

May 5, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered March 17, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002568-2020

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

KING J.

Appellant Ivan Guadalupe Nunez-Hurtado, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas following his jury trial convictions for theft by unlawful taking, receiving stolen property, two counts of conspiracy, and corruption of minors.^[1] We affirm.

The trial court set forth the relevant facts and procedural history of this case as follows.

On May 19, 2020, during the height of the Coronavirus pandemic, Appellant…and his co-defendant, Darius Bolden, entered the City of Coatesville Police impound lot and committed the theft of an All-Terrain Vehicle (ATV). Police located the abandoned ATV and apprehended Appellant on the stairs to the roof of the building where Appellant abandoned the ATV.^[2] The Formal Information, filed on September 30, 2020, charge[d Appellant] with[:] one (1) count of theft by unlawful taking or disposition, one (1) count [of] receiving stolen property, one (1) count [of] criminal trespass, three (3) counts [of] criminal conspiracy, one (1) count [of] corruption of minors, and one (1) count [of] disorderly conduct.^[3]

A two (2) day jury trial commenced on October 27, 2021 before the Honorable Judge Jacqueline C. Cody. The trial concluded on October 28, 2021 and the jury found [Appellant] guilty of[:] one (1) count [of] theft by unlawful taking or disposition, one (1) count [of] receiving stolen property, one (1) count [of] criminal conspiracy to commit theft by unlawful taking or disposition, one (1) count [of] criminal conspiracy to commit receiving stolen property, and one (1) count [of] corruption of minors. On December 20, 2021, one of the Honorable Judge Jacqueline C. Cody's criminal trial lists was reassigned to the Honorable Judge Alita A. Rovito due to Judge Cody's retirement on January 3, 2022. Prior to [Appellant's] sentencing, before Judge Rovito on March 17, 2022, [Appellant] raised a claim, in his sentencing memorandum for the first time, regarding the proper grading of his convictions. The Commonwealth requested the matter to be addressed by Judge Cody, as the trial judge.

On February 15, 2022, the parties appeared before Judge Cody to address the issue of grading. On February 16, 2022, Judge Cody entered an Order grading [Appellant's] convictions on the charges of theft by unlawful taking, receiving stolen property, conspiracy to [commit] theft by unlaw[ful] taking, and conspiracy to [commit] receiving stolen property as felonies of the first degree. On February 23, 2022, Judge Cody entered an Amended Order, again, grading the above convictions as felonies of the first degree. Judge Cody entered a Second Amended Order on March 17, 2022 due to a mistake in the grading in the first two (2) orders. The final Order graded [the theft and conspiracy related] convictions as felonies of the third degree. [The court imposed an aggregate sentence that day of three years' probation^[4].

Appellant…filed [a timely] Notice of Appeal to the Superior Court on April 15, 2022 in the above-captioned matter. … The trial court ordered Appellant to file a Concise Statement of Errors Complained of on Appeal on April [2]6, 2022. Appellant filed a Concise Statement on July 13, 2022 [following receipt of the transcripts]. …

(Trial Court Opinion, filed 8/5/22, at 1-3) (internal footnotes omitted).

Appellant raises two issues for our review:

Did the trial court improperly grade Theft by Unlawful Taking, Receiving Stolen Property, Criminal Conspiracy to commit Theft by Unlawful Taking and Criminal Conspiracy to commit Receiving Stolen Property? In light of Apprendi v. New Jersey^[5], did the jury's verdict slip authorize the court to sentence Appellant on the above-mentioned offenses graded as felonies of the third degree?

Was the evidence insufficient as a matter of law for a conviction on the offense of Corruption of Minors, 18 Pa.C.S.A. § 6301 (a)(1)(i)? Specifically, was there insufficient evidence produced to show that the person whose morals would tend to be corrupted was under the age of 18?

(Appellant's Brief at 5).

In his first issue, Appellant argues that there was no finding by the jury as to the value of the item stolen or the type of item stolen. Specifically, Appellant avers the verdict slip did not contain a finding that the amount of the theft exceeded $2,000.00. Further, Appellant complains there was no finding by the jury that the property stolen was an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle. Lastly, Appellant contends there was no finding by the jury that Appellant was in the business of buying or selling stolen property. Appellant maintains that at least one of these findings was required to grade Appellant's theft offenses as felonies of the third degree. In sum, Appellant insists the Commonwealth failed to present the jury with the essential questions necessary to elevate the grading of the offenses from misdemeanors of the third degree to felonies of the third degree, namely (1) whether the amount exceeded $2,000.00; or (2) whether the item stolen was a motor-propelled vehicle; or (3) whether Appellant was in the business of buying or selling stolen property. Appellant concludes the court imposed an illegal sentence, and this Court must vacate and remand for the re-grading of the offenses at issue. We disagree.

In general, a defendant's "failure to contemporaneously object to the jury instructions or the verdict slip…operates as a waiver." Commonwealth v. Matty, 619 A.2d 1383, 1387 (Pa.Super. 1993). Nevertheless, "[a] claim that the court improperly graded an offense for sentencing purposes implicates the legality of a sentence" and is not waivable, assuming jurisdiction is proper. Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa.Super. 2013).^[6] "When the legality of a sentence is at issue on appeal, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa.Super. 2010) (en banc).

In Apprendi, the United States Supreme Court held: "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." Apprendi, supra at 490, 120 S.Ct. at 2363. See also Commonwealth v. Panko, 975 A.2d 1189, 1191 (Pa.Super. 2009), appeal denied, 618 Pa. 686, 57 A.3d 69 (2012) (citing Apprendi and noting that "a fact that increases the maximum penalty or changes the grade of an offense must be submitted to a jury and proven beyond a reasonable doubt").

The Crimes Code provides for the grading of theft offenses, in relevant part, as follows:

§ 3903. Grading of theft offenses

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

8 Pa.C.S.A. § 3903(a.1), (b) (emphasis added). See also 18 Pa.C.S.A. § 905 (stating: "Except as otherwise provided in this title, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy").

The Vehicle Code defines a "motor vehicle" as "[a] vehicle which is self- propelled except an electric personal assistive mobility device or a vehicle which is propelled solely by human power." 75 Pa.C.S.A. § 102. This Court has held that an ATV "is clearly a motor vehicle." Commonwealth v. Predmore, 500 A.2d 474, 475 (Pa.Super. 1985). See also Commonwealth v. Eliason, 509 A.2d 1296 (Pa.Super. 1986), appeal denied, 517 Pa. 592, 535 A.2d 81 (1987) (holding three-wheeler vehicle falls within definition of "motor vehicle" for purposes of Vehicle Code).

In Commonwealth v. Nellom, 234 A.3d 695 (Pa.Super. 2020), appeal denied, __Pa.__, 252 A.3d 593 (2021), on which Appellant heavily relies, a jury convicted the appellant of theft of services. On appeal, the appellant claimed the verdict was incomplete because it did not require the jury to find that the value of the stolen services exceeded $2,000.00, and that such deficiency resulted in an illegal sentence. Although the appellant did not object to the verdict slip, rendering any challenge to the language of the verdict slip waived, this Court considered the challenge to the improper grading of his offense a non-waivable challenge to the legality of his sentence. See id. at 704.

This Court explained that the theft of services statute provides that an offense constitutes a summary offense when the value of the services obtained or diverted is less than $50.00 when the value of the services obtained or diverted is $50.00 or more, the...