Commonwealth v. Yacobucci

1

COMMONWEALTH OF PENNSYLVANIA v. THOMAS J. YACOBUCCI, II Appellant

No. 544 WDA 2022

No. J-A02005-23

Superior Court of Pennsylvania

March 15, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered April 7, 2022 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000858-2018

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

MEMORANDUM

BOWES J.

Thomas J. Yacobucci, II appeals from the judgment of sentence of a three-hundred-dollar fine and court costs, which was imposed after a jury convicted him of theft by unlawful taking and receiving stolen property ("RSP"). We vacate Appellant's conviction and sentence for RSP and affirm his judgment of sentence in all other respects.

In 2017, Dennis Nixon owned a four-bay trailer with modified sideboards and a back gate. See N.T. Jury Trial 2/2/22, at 21-22. Mr. Nixon stored the trailer at his door-manufacturing business where he allowed employees to borrow it for their own personal use. Id. at 21, 40. Terry Erickson was an employee of Mr. Nixon who often borrowed the trailer. Id. at 25-26. On the weekends and evenings, Mr. Erickson worked as a handyman for Appellant, who owned a car wash and several rental properties. Id. at 34.

In October of 2017, Mr. Erickson received permission to borrow Mr. Nixon's trailer to assist Appellant in retrieving items he had purchased at an auction. Id. at 49. Appellant and Mr. Erickson transported the items from the auction to Appellant's car wash using the trailer. Appellant then stored the trailer and items inside a car wash bay. Over the next two months, Mr. Erickson and his son, Glenn, observed the trailer parked in the car wash bay.^[1]In December, Mr. Erickson contacted Appellant about returning the trailer to its rightful owner, Mr. Nixon. Specifically, Mr. Erickson sent Appellant three letters and called him several times. Id. at 75. Appellant told him that he would not relinquish the trailer until Mr. Erickson brought him security cameras that Mr. Erickson's wife had been working on for the car wash and returned money that Appellant had prepaid to Mr. Erickson for future work.

On February 26, 2018, Mr. Erickson, Mrs. Erickson, and Glenn arrived at the car wash and returned the security cameras and money. Communications broke down when they requested the return of the trailer. Appellant became hostile and insisted that the Ericksons "get off his property." Id. at 43. The Ericksons vacated the property but remained close by while they called the Altoona Police Department to report the trailer as stolen. Officers William Hanelly, Jr. and Scott Hand responded to the car wash, where they separately encountered the Ericksons and Appellant and attempted to peacefully resolve the dispute. However, Appellant was "dismissive" of the officers and refused to return the trailer. Id. at 105, 109.

On March 5, 2018, Detective Terry Merritts was assigned to the case and called Appellant, identifying himself as a police officer and stating that he was calling about the trailer. Id. at 147. Appellant immediately became "very hostile," stated this was "a civil matter," and shouted that "he was done talking to me and it was a waste of his time," before terminating the phone call. Id. at 147-48. Thereafter, the Commonwealth charged Appellant with theft by unlawful taking-movable property and RSP, both classified as misdemeanors in the first degree for which Appellant, if convicted, would be subject to a term of up to five years of incarceration.

On August 23, 2019, the parties proceeded to a non-jury trial on the summary offense of theft by unlawful taking. After seven witnesses testified, the trial court entered an order and opinion convicting Appellant of theft by unlawful taking. On February 19, 2020, the Court held a sentencing and restitution hearing, at which the court ordered Appellant to pay $1,187.42 in restitution to Mr. Nixon, a fine of $100, and court costs. Appellant paid the restitution in cash to Mr. Nixon the same day. Since Appellant paid the restitution immediately, the court stated that it would not impose a sentence of incarceration or probation. On March 13, 2020, the court executed a "consent order" which was signed by the Commonwealth and trial counsel and amended Appellant's conviction from theft by unlawful taking to retail theft, which is a summary offense.

Appellant filed a timely notice of appeal challenging the sufficiency of the evidence to convict him of retail theft. This Court vacated the conviction and remanded for a new trial, explaining that the trial court did not have the discretion to reclassify a crime as a summary offense, alter the verdict after trial to find Appellant guilty of a crime for which he was not tried, or sua sponte enter a consent order amending the criminal information. See Commonwealth v. Yacobucci, 258 A.3d 557 (Pa.Super. 2021) (non-precedential decision at 6-8). Further, since the record was devoid of any evidence that Appellant waived his constitutional right to a jury trial and the theft offense, as properly graded, could have resulted in a term of five years' incarceration, we vacated the conviction and remanded for a new trial. Id. (non-precedential decision at 9-10).

On February 2, 2022, Appellant proceeded to a jury trial on the original charges. At the outset, the trial court issued a sequestration order barring all Commonwealth witnesses from the courtroom except for Detective Merritts, the affiant.^[2] After the testimony of Officer Hanelly, where he was crossexamined about his reasoning for not seeking a search warrant for the car wash to confirm the presence of the trailer, a brief recess occurred. Thereafter, Appellant alleged that Officer Hanelly, Officer Hand, and Detective Merritts had violated the sequestration order during the recess. The trial court held a hearing outside the presence of the jury at which Officer Hanelly, Officer Hand, and Detective Merritts testified that they had been talking generally about the staleness of information as it applied to search warrants. Appellant moved for a mistrial, which the court denied. Although the court agreed with Appellant that the Commonwealth violated the sequestration order, the court disagreed that a mistrial was necessary. Instead, the court barred the Commonwealth from presenting Officer Hand's testimony, the only remaining Commonwealth witness subject to the sequestration order. Since Detective Merritts was not subject to the sequestration order and was not involved in the investigation at the same time as Officers Hanelly and Hand, the court allowed Detective Merritts to testify. Notably, Detective Merritts' testimony did not concern the staleness of a search warrant.

At the conclusion of the Commonwealth's case-in-chief, Appellant moved for judgment of acquittal based on insufficient evidence, which the trial court denied. Appellant elected not to testify, opining that "we've all heard from enough clowns in the circus." Id. at 154. After issuing its instructions, the court answered one jury question without objection. Ultimately, the jury found Appellant guilty of both charges. However, since the jury specifically indicated that the amount taken was not between $200 and $2,000, Appellant's convictions were downgraded to third-degree misdemeanors. See 18 Pa.C.S. § 3903(c); see also Commonwealth v. Thompson, 279 A.3d 1261 (Pa.Super. 2022) (non-precedential decision at 5) (finding that where the value of the goods cannot be satisfactorily ascertained the value shall be deemed to be less than $50, constituting a misdemeanor of the third degree).

The trial court sentenced Appellant to pay a $300 fine for the theft conviction. The RSP count merged with the theft conviction for sentencing purposes. Appellant did not file a post-sentence motion. Instead, this timely notice of appeal followed. Both Appellant and the trial court have complied with the mandates of Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Did the trial court err in denying [Appellant's] motion for acquittal at the close of the Commonwealth's case with regard to the theft by unlawful taking and [RSP] charges?

2. Did the trial court err in not declaring a mistrial or taking greater curative action because of the violation of the sequestration order by the Commonwealth's police witnesses?

3. Did the trial court err in failing to provide sufficient answer, before the verdict was delivered, to Juror No. 3's question about "what type of vehicle was used to pull the trailer[?"]

Appellant's brief at 2.

We first consider Appellant's averment that the trial court erred when it denied his motion for judgment of acquittal. A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge. See Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa.Super. 2014). Our scope and standard of review when considering challenges to the sufficiency of the evidence are well settled:

Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. [T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the fact-finder to determine the

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