Commonwealth v. Seladones

305 A.3d 83

COMMONWEALTH of Pennsylvania

v.Tara Ann SELADONES, Appellant

No. 377 MDA 2023

Superior Court of Pennsylvania.

Submitted July 31, 2023

Filed October 24, 2023

Appeal from the Judgment of Sentence Entered March 1, 2023, In the Court of Common Pleas of Schuylkill County, Criminal Division, at No(s): CP-54-CR-0000145-2022, Christina E. Hale, J.

Christopher M. Riedlinger, Pottsville, appellant.

Michael J. Stine, Assistant District Attorney, Pottsville, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

OPINION BY BOWES, J.:

Tara Ann Seladones appeals from the judgment of sentence of one to eighteen months of imprisonment plus costs and restitution imposed upon her conviction for theft by unlawful taking. We vacate the sentence and remand for proceedings consistent with this opinion.

By way of background, the victim in this matter, Connie Yutko, kept currency and silver coins worth approximately $10,000 in a metal firebox in the spare bedroom of her home. In October of 2021, after falling ill from COVID-19, Ms. Yutko was admitted to the hospital where she remained for approximately eight days. Shortly after admission, she texted Appellant and asked if Appellant would go to her house to take care of her cats. Ms. Yutko had previously hired Appellant to watch after her home and pets while on vacation.

A few weeks after being discharged, Ms. Yutko realized that the firebox and all its contents were missing. She contacted the police and provided details about the box, currency, and coins to Pennsylvania State Police Trooper Steven Kase, Jr. She also informed the trooper that she suspected Appellant had taken the items, as no one else was in her home while she was at the hospital and there were no signs of forced entry. Trooper Kase then interviewed Appellant in a common area outside her apartment building. After denying any involvement in the theft numerous times, and after multiple assurances from the trooper that Ms. Yutko had no desire to press charges if the responsible person came clean, Appellant eventually confessed that she took the firebox and items therein to satisfy her gambling habit. The confession was recorded with a microphone the trooper was wearing. Trooper Kase arrested Appellant several minutes later.

Appellant was subsequently charged with a single count of theft by unlawful taking, graded as a felony of the third degree since the value of the objects taken was purported to be over $2,000. The matter proceeded to a jury trial, wherein Ms. Yutko and Trooper Kase testified as outlined above. The Commonwealth also introduced a portion of the recording of Appellant’s confession prior to her arrest. Appellant did not testify. Her defense, as developed by the argument of her attorney, was that the confession was obtained through coercive and deceptive practices and that Trooper Kase rushed to judgment by failing to investigate others who could be responsible. At the conclusion of trial, the jury convicted Appellant of the sole theft count. Critically, the verdict slip did not contain an interrogatory for the jury to find the value of the items taken. Similarly, in the trial court’s closing instructions to the jurors, it did not direct them to determine the value of the goods taken.

On the day Appellant was initially scheduled to be sentenced, she filed a motion for extraordinary relief asserting, inter alia, that her conviction should be graded as a misdemeanor of the third degree since there was no factual finding as to the value of the items stolen. The trial court continued sentencing to consider briefs filed by Appellant and the Commonwealth. On February 17, 2023, the court entered an opinion and order denying the motion. Appellant was subsequently sentenced as indicated above, with the theft graded as a felony of the third degree.

Appellant filed a timely notice of appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.¹ Appellant presents the following question for our resolution: "Whether the trial judge committed an error of law in sentencing [Appellant] for theft by unlawful taking graded as a [third-] degree felony instead of a [third-]degree misdemeanor after the jury failed to determine the value of the items taken?" Appellant’s brief at 4 (cleaned up).

[1, 2] We begin by observing that a "claim that the court improperly graded an offense for sentencing purposes implicates the legality of a sentence." Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa.Super. 2013). In reviewing such a challenge, "our standard of review is de novo and our scope of review is plenary." Commonwealth v. Stanley, 259 A.3d 989, 992 (Pa.Super. 2021) (citation omitted).

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

§ 3903. Grading of theft offenses

….

(a.1) Felony of the third degree.— [With exceptions not pertinent here], 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.1) … constitutes a misdemeanor ofthe 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.

18 Pa.C.S. § 3903. The statute further states that "[w]hen the value of property cannot be satisfactorily ascertained pursuant to the standards set forth in … this subsection[,] its value shall be deemed to be an amount less than $50." 18 Pa.C.S. § 3903(c)(3). In such a case, the offense would constitute a third-degree misdemeanor.

Appellant argues that since the jury did not find the value of the stolen items on the verdict slip or otherwise, the amount should be deemed to be less than $50 and her theft must be graded as a misdemeanor of the third degree. See Appellant’s brief at 8-11. Since the trial court sentenced her to a felony, she avers that her sentence is illegal and must be vacated. Id. at 10-11. After review, we are constrained to agree with Appellant.

[3] Although she does not articulate it as such, Appellant’s challenge invokes a legal principle arising from a line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). There, the United States Supreme Court held that "[o]ther 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." Id. at 490, 120 S.Ct. 2348. In the same vein, this Court, citing Apprendi, has stated 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." Commonwealth v. Panico, 975 A.2d 1189, 1191 (Pa.Super. 2009) (emphasis added). One notable carveout to this prohibition is that a judge may change the grading of an offense based on facts admitted by a defendant, even if they are not determined by the factfinder. See Commonwealth v. Johnson, 961 A.2d 877, 881 (Pa.Super. 2008); see also Cunningham v. California, 549 U.S. 270, 283, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (stating that "[o]ur 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" (cleaned up)).

In Johnson, the defendant was convicted by a jury of intimidation of a witness, a crime graded as a felony of the first degree if the underlying case in which the victim was involved included a charge of murder. See 18 Pa.C.S. § 4952(b)(2). During closing argument, Johnson’s counsel readily conceded that the victim was a witness against Johnson’s brother relating to the brother’s murder charges. See Johnson, supra at 883. Accordingly, the trial court sentenced him on the intimidation count as a felony of the first degree.

Johnson appealed, asserting a challenge under Apprendi because the jury did not determine as a matter of fact that the victim was a witness in a case involving a murder charge. This Court affirmed, holding that based on counsel’s admission, made during trial in the presence of the jury, "there was no need for the jury to make a specific factual finding regarding the crime to which [the victim] had been a witness." Id. at 883. Supporting that decision, we cited historic precedent from our High Court standing for the proposition that "[i]n trials for felony, admissions of fact which the government is bound to prove are not permitted unless made at the trial in open court by the prisoner or his counsel." Id. at 882 (citing Commonwealth v. McMurray, 198 Pa. 51, 47 A. 952, 953 (1901) (emphasis added)). As such, we determined that counsel’s closing statements at trial constituted an admission of fact sufficient to satisfy Apprendi.

[4] Here, the trial court relied upon our holding in Johnson in rejecting Appellant’s claim, opining that Appellant’s prearrest confession was sufficient to supplant any need for the jury to make a factual determination as to value. See Opinion of Court, 2/17/23, at 5. The court also highlighted that Trooper Kase clearly indicated prior to the confession that the items in question were worth approximately $10,000, with the bulk of that being cash, and that the value was never disputed by Appellant before or during trial. Id. Accordingly, it determined that since the value of the stolen items was over $2,000, pursuant to 18 Pa.C.S. § 3903(a.1) the theft was properly graded as a felony of the third degree.²

We find Johnson to...