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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. KEITH CONRAD, Appellant No. 1659 WDA 2014

Appeal from the Judgment of Sentence of May 20, 201 4 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000853-2013

BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ. MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 03, 2015 Appellant, Keith Conrad, appeals from the judgment of sentence entered on May 20, 2014, following his jury trial c onviction for theft by failure to make required disposition of funds recei ved. 1 Upon review, we affirm Appellant’s conviction, but remand for resen tencing on restitution. We briefly summarize the facts and procedural hist ory of this case as follows. Appellant is a home improvement contracto r. Ronald Ferry hired Appellant to install, inter alia , a geothermal heating system at Mr. Ferry’s residence. The Commonwealth charged Appellant with the aforementioned crime, as well as deceptive or fraudulent business practices 2 when Appellant

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1 18 Pa.C.S.A. § 3927.

2 18 Pa.C.S.A. § 4107.J-S32020-15

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purportedly accepted payment and did not complete s ervices. On April 9, 2014, a jury convicted Appellant of theft by failur e to make required disposition of funds and acquitted him of deceptive or fraudulent business practices. On May 20, 2014, the trial court senten ced Appellant to six months to one year of incarceration, followed by tw o years of probation. The trial court also ordered Appellant to pay $22,6 86.84 to Boyer Refrigeration and $4,806.20 to Mr. Ferry as restitu tion. This timely appeal

resulted. 3

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3 Appellant filed a post-sentence motion on May 29, 2014. The trial court held a hearing on Appellant’s post-sentence motion on June 5, 2014. The trial court issued an order and opinion on August 2 6, 2014, denying counts V and VII of Appellant’s post-sentence motion, which dealt with issues pertaining to recusal. The trial court did not add ress Appellant’s remaining claims at that time. On September 25, 2014, Appell ant filed a notice of appeal. On September 26, 2014, Appellant’s post-se ntence motion was denied by operation of law. Although the notice of appeal was premature, because the trial court had not ruled on the post-s entence motion in its entirety, the appeal was perfected once the remaini ng counts were denied by operation of law. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed aft er the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry an d on the day thereof.”). On September 26, 2014, the trial court ordered Appella nt to file a concise statement of errors complained of on appeal pursuan t to Pa.R.A.P. 1925. Appellant timely complied, raising some of the clai ms he raised previously by way of post-sentence motion, but which were not add ressed by the trial court. On November 17, 2014, the trial court advis ed this Court that it would rely on its August 26, 2014 opinion regarding the issues presented on appeal. On June 9, 2015, this Court issued a memora ndum decision remanding the case back to the trial court for the preparation of an opinion pursuant to Pa.R.A.P. 1925(a) that addressed all of the issues raised in Appellant’s concise statement of errors complained of on appeal under Pa.R.A.P. 1925(b). The trial court filed a supplem ental opinion on June 24, 2015.J-S32020-15

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Appellant presents the following issues 4 for our consideration:

I. Whether the lower court erred in sustaining the verdict of guilty where the Commonwealth failed to present sufficient evidence at trial to support a j ury finding that [Appellant] obtained the relevant prop erty “upon agreement, or subject to a known legal obligation, to make specified payments or other disposition.”

II. Whether the lower court erred by issuing an order o f restitution in the amount of $4,806.20 to Ronald Ferry, where the restitution related to the charge of deceptive business practices for which [Appellant] was acquitted by a jury.

III. Whether the trial court erred by misapplying the sentencing guidelines when it assigned an offense gravity score of (6) and used the same in calculati ng the guideline sentence, where the offense involved a monetary value of less than $25,000[.00]. Appellant’s Brief at 5 (complete capitalization and suggested answers omitted). In the first issue, Appellant contends that the Com monwealth did not present sufficient evidence to support his convicti on for theft by failure to make required disposition of funds received. Appellant’s Brief at 26-31. More specifically, Appellant argues, “where a const ruction contract does not require the specific disposition of funds, payments made to the contractor become the property of the contractor at the time o f transfer.” Id. at 26. Appellant claims “he completed approximately ninety -five (95) percent of

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4 We have reordered and renumbered the issues for ea se of discussion.J-S32020-15

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the contracted work” over the course of “numerous m onths” and “it was only after his business began to financially spiral that [Appellant] ceased work on

the contract.” Id. at 28. Thus, he contends, there was no evidence t hat established Appellant fraudulently obtained the adv anced funds at the inception of the contract. Id. at 27. Further, Appellant claims “the record does not support a finding that [he] obtained any f unds from Mr. Ferry that were subject to a specific obligation to reserve a specific portion for payment of the geothermal system[.]” Id. at 31.

Our standard of review is well-settled: The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitt ed at trial in the light most favorable to the verdict wi nner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evide nce and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances establishe d by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probabi lity of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving ever y element of the crime beyond a reasonable doubt by m eans of wholly circumstantial evidence. Moreover, in app lying the above test, the entire record must be evaluated and all evidence actually received must be considered. Fina lly, the finder of fact while passing upon the credibility o f witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Cahill , 95 A.3d 298, 300 (Pa. Super. 2014) (citation omitted).J-S32020-15

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The legislature defines theft by failure to make re quired disposition of

funds received as follows:

A person who obtains property upon agreement, or su bject to a known legal obligation, to make specified paym ents or other disposition, whether from such property or it s proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intenti onally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing appl ies notwithstanding that it may be impossible to identi fy particular property as belonging to the victim at t he time of the failure of the actor to make the required payme nt or disposition. 18 Pa.C.S.A. § 3927(a). We have previously determined: Section 3927(a) requires a person who accepts money or property of another pursuant to an agreement to mee t the obligations of the agreement. An agent who has rece ived funds subject to an obligation to make a required p ayment may commingle funds if he so chooses without penalt y as long as the obligation for which the money or prope rty is entrusted is met in a timely fashion. The language of the statute, that a person is guilty of theft by failur e to make required disposition of funds if he ‘deals with pro perty as his own,’ does not require that the defendant actually use the property of another. The word ‘deals’ means that the defendant took the property designed for a specific use and used it as if it were his or her own property. Commonwealth v. Veon , 109 A.3d 754, 773-774 (Pa. Super. 2015) (citations and quotations omitted) (emphasis in ori ginal). The Commonwealth produced the following evidence a t trial. Mr. Ferry testified that he contracted with Appellant to buil d an efficient, economical, and environmentally friendly second home on propert y Mr. Ferry owned nearJ-S32020-15

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Treasure Lake. N.T., 4/9/2014, at 27. Mr. Ferry w as interested in installing a geothermal heating unit at the home. Id. He entered into a contract with Appellant “to construct a three-bedroom, two-bath h ome with about 1500 square feet and the heat source would be geothermal -based.” Id. at 30. Under the written terms of the contract, the propos ed cost of construction of the house was $155,000.00, with an additional cost of $28,358.54 for the geothermal unit. Id. at 42. Mr. Ferry paid Appellant the entire amoun t due under the contract in nine payments, including an a dditional $11,387.35 for purported overages not covered under the contract, and Mr. Ferry did not make direct payment to Charles Scott Boyer, owner o f Boyer’s Refrigeration, Heating and Air Conditioning. Id. at 33-34, 43-53. Boyer’s Heating and Cooling installed the geothermal unit in the new ho use. Id. at 34. Thereafter, Mr. Boyer contacted Mr. Ferry to inquir e as to whether Mr. Ferry paid Appellant for the unit. Id. at 34. Subsequently, Mr. Ferry confronted Appellant “multiple times” about payment to Mr. Boy er and Appellant said “he was taking care of it.” Id. at 35. The house was never completed and Mr. Boyer was not paid. Id. at 36. Mr. Boyer filed a mechanic’s lien against Mr. Ferry’s property for $28,074.95. Id. at 38. The Commonwealth also presented the testimony of M r. Boyer. Mr. Boyer testified he installed a geothermal system in Mr. Ferry’s house at Appellant’s request. Id. at 64-66. Mr. Boyer and Appellant entered into a

written contract beforehand. Id. at 71-72. The cost was a little over $28,000.00 and Appellant made one initial payment o f “just a little overJ-S32020-15

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$2,800.00” to Mr. Boyer, representing 10% of the to tal cost of the geothermal unit. Id. at 66. Mr. Boyer invoiced and communicated with Appellant multiple times after installation of the heating unit was almost complete, in an effort to receive payment of the re maining balance. Id. at 66-67. Mr. Boyer testified that he asked Appellant if Mr. Ferry paid Appellant. Id. at 68. Appellant admitted to Mr. Boyer that Mr. F erry had paid him, but “said [Appellant] had spent it elsewh ere.” Id. at 68. Mr. Boyer attempted to secure financing for Appellant, but Appellant did not follow through. Id. Mr. Boyer testified that Appellant “acknowledged that he didn’t intend to pay [Mr. Boyer], it wasn’t [App ellant’s] intention, [and] he didn’t have the money[.]” Id. at 69. Appellant testified on his own behalf. Appellant confirmed the contract prices, conceded that Mr. Ferry paid him in full, a nd acknowledged he did not pay Mr. Boyer. Id. at 96-99, 123, 150. Appellant agreed that he contracted directly with Mr. Boyer and that Mr. Fer ry expected Appellant to pay Mr. Boyer. Id. at 148-149. Appellant had one bank account that h e used for multiple construction contracts and no met hod of accounting for the individual jobs. Id. at 145-147. Appellant paid himself, $700.00 per we ek, from that account which contained the deposits from Mr. Ferry. Id. at 134-

136. Upon review of the record, viewing it in the light most favorable to the Commonwealth as our standard requires, we conclude that there was sufficient evidence to support Appellant’s convicti on. Appellant acceptedJ-S32020-15

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money from Mr. Ferry based upon a contract the part ies entered. The contract specifically called for the installation o f a geothermal unit and specifically named Boyer Refrigeration, Heating, an d Air Conditioning as the entity to perform the work. Mr. Ferry paid Appella nt in full for the entirety of the work to be completed, including installation of the geothermal unit. Appellant commingled funds from multiple constructi on jobs, including the one at issue here, into one bank account, but then never met his obligation to pay Mr. Boyer. Appellant accepted funds under t he agreement with Mr. Ferry and, instead of meeting his obligations under the agreement in a timely fashion, used those funds as if they were hi s own property. For all of the foregoing reasons, we discern no abuse of discr etion in finding sufficient evidence to support Appellant’s conviction for thef t by failure to make required disposition of funds received. In Appellant’s last two issues, he claims that the trial court misapplied the sentencing guidelines when it assigned an inapp ropriate, higher offense gravity score in fashioning Appellant’s sentence on his conviction for theft by failure to make required disposition. Appellant’s Brief at 8. More specifically, Appellant argues that since he was ac quitted of deceptive business practices, the trial court erred in orderi ng restitution in the amount of $4,806.20 to Mr. Ferry. Id. at 9. Appellant argues that his conviction for theft by failure to make the required disposition o f funds supported only the $22,686.84 restitution award to Boyer Refrigeration . Thus, he contends:J-S32020-15

- 9 - Theft by failure to make required disposition of fu nds is subcategorized within the sentencing guidelines acc ording to the monetary value involved in the offense. Wher e the offense involved a monetary value amount between $2,000[.00] and $25,000[.00], the appropriate offen se gravity score is five (5). Where the offense invol ved a monetary amount between $25,000[.00] and $100,000[.00], the appropriate offense gravity scor e is six (6). Here, the offense for which [Appellant] was c onvicted involved a monetary amount of $22,686.84, making th e appropriate offense gravity score five (5). Furthermore, due to the miscalculation of the offen se gravity score, [Appellant] was sentenced according to an inaccurate standard range. The standard range for an offense gravity score of five (5) and a prior recor d score of zero (0) is RS (restorative sanctions) to nine (9) months of incarceration. However, the standard range for an offense gravity score of six (6) and a prior record score o f zero (0) increases to three (3) to twelve (12) months of incarceration. Although [Appellant’s] minimum term of incarceration of six (6) months could have been imp osed under either standard range, that does not prevent [Appellant] from raising the present challenge to t he misapplication of the sentencing guidelines. Id. at 15 (some capitalization omitted). In sum, in his last two issues on appeal, Appellant avers that the trial court erred by ordering restitution on the acquitte d charge of deceptive business practices. Appellant further argues that this error, in turn, improperly inflated the monetary value of Appellant ’s offense under the sentencing guidelines and affected the offense grav ity score used by the trial court to determine the applicable guideline range f or theft by failure to make required disposition of funds received. First, we address the restitution issue:J-S32020-15

- 10 - Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury dire ctly resulting from the crime, the offender shall be sen tenced to make restitution in addition to the punishment pres cribed therefor. 18 Pa.C.S.A. § 1106(a). “Challenges to the appropr iateness of a sentence of restitution are generally considered challenges to the legality of the

sentence.” Commonwealth v. Langston , 904 A.2d 917, 921 (Pa. Super. 2006) (citation omitted). Our standard of review i n determining the legality

of a sentence is as follows:

If no statutory authorization exists for a particul ar sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial cou rt's application of a statute, our standard of review is plenary and is limited to determining whether the trial cou rt committed an error of law. Commonwealth v. Hall , 994 A.2d 1141, 1144 (Pa. Super. 2010) (citation omitted). On this issue, the trial court “agrees” that it “e rred in ordering [Appellant] to pay $4,806.20 to Mr. Ferry in restit ution.” Trial Court Opinion, 6/24/2015, at 4. Upon review, we also agr ee. Section 1106 provides for restitution upon conviction of a crime involving property. Here, ordering restitution on the deceptive business prac tices charge, upon which the jury found Appellant not guilty, was illegal. “If this Court determines that a sentence must be corrected, we are empowered to either amend the sentence directly or to remand the case to the tria l court for resentencing.”J-S32020-15

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Commonwealth v. Benchoff , 700 A.2d 1289, 1294 (Pa. Super. 1997); s ee also Commonwealth v. Dobbs , 682 A.2d 388, 392 (Pa. Super. 1996) (noting that while this Court has the option of ame nding an illegal sentence directly or remanding it to the trial court for re- sentencing, “[i]f a correction by this [C]ourt may upset the sentencing scheme env isioned by the trial court, the better practice is to remand.”); compare Commonwealth v. Gentry , 101 A.3d 813, 818 (Pa. Super. 2014) (trial court order imposing restitution of $1.00, until later evidence of the e xact amount of restitution due was provided by the Commonwealth, found illegal ; case remanded because restitution was proper, but not accurate, a nd the overall sentencing scheme was upset.). In this case, we vacate the portion of Appellant’s sentence ordering restitution to Mr. Ferry and remand for resentencin g. We have upset the sentencing scheme in this case by vacating the port ion of restitution to Mr. Ferry. As recited above, the geothermal unit cost $28,358.54 and Mr. Boyer received a payment of $2,835.85. Hence, $25, 522.69 was still due to Boyer Refrigeration. However, the trial court orde red restitution to Boyd Refrigeration in the amount of $22,686.84. We are unable to reconcile the balance still due and owing to Boyer Refrigeration with the trial court’s actual restitution order to that entity. We note, however , that it appears from the record that the trial court may have factored the r estitution not properly due to Mr. Ferry in its assessment of the restitution d ue to Boyer Refrigeration.J-S32020-15

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Hence, we vacate those portions of Appellant’s sent ence pertaining to restitution and remand for resentencing. Next, Appellant challenges the trial court’s assig nment of an offense gravity score of six to his conviction in sentencin g him to a term of imprisonment. Appellant’s claim implicates the dis cretionary aspects of sentencing. See Commonwealth v. Lamonda , 52 A.3d 365, 371 (Pa. Super. 2012) ( en banc ) (Appellant argued trial court abused its discreti on in applying an offense gravity score of eight in calcu lating the guideline ranges).

A challenge to the discretionary aspects of a sente nce must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute. When challenging the discretionary aspects of the senten ce imposed, an appellant must present a substantial qu estion as to the inappropriateness of the sentence. Two requirements must be met before we will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretiona ry aspects of a sentence. Second, the appellant must show that there is a substantial question that the sente nce imposed is not appropriate under the Sentencing Cod e. That is, the sentence violates either a specific provisi on of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentenci ng process. Id. In this case, Appellant has complied with the pr erequisites. Moreover, we previously determined that a claim that the tria l court abused its discretion in applying an offense gravity score rai ses a substantial question.

Id. Hence, we will examine Appellant’s claim.J-S32020-15

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Our standard of review is as follows: Sentencing is a matter vested in the sound discreti on of the sentencing judge, and a sentence will not be distur bed on appeal absent a manifest abuse of discretion. In th is context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must estab lish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reas ons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Zirkle , 107 A.3d 127, 132 (Pa. Super. 2014). Here, the trial court explained:

[Appellant] argues that the sentencing [c]ourt abus ed its discretion in assigning an offense gravity score of six to his conviction. Plainly stated, Appellant’s argument f ails. Furthermore, even if [Appellant] is correct that th e sentencing [c]ourt used the wrong offense gravity s core; it is of no effect because the sentence imposed is wit h[in] the standard range of either an offense gravity score o f five or six. For first time offenders, the crime of theft by fai lure to make required disposition of funds received carries an offense gravity score of five for an offense involv ing a monetary value between $2,000.00 and $25,000.00; an d an offense gravity score of six for an offense invo lving a monetary value of $25,000.00 to $100,000.00. See 204 Pa. Code § 303.15. With an offense gravity score o f five and prior record score of zero, Pennsylvania’s sent encing guidelines suggest a standard range of restorative sanctions (RS) to nine months of incarceration. With an offe nse gravity score of six and a prior record score of ze ro, Pennsylvania’s sentencing guidelines suggest a stan dard range of three months of incarceration to 12 months of incarceration. In either event, a six[-]month inca rceration sentence is within the standard range of either off ense gravity score.J-S32020-15

- 14 - [Appellant’s] offense gravity score is properly cal culated at six because he was given $28,358.54 for the geother mal system; less the 10% payment he made of $2,835.85; leaving a remaining balance of $25,522.69. This wa rrants an offense gravity score of six as it is within the $25,000.00 to $100,000.00 range. However, in practical terms, it is of no effect whether his offense gravity score was cal culated at five or six because his six[-]month sentence is wit hin the standard range for both offense gravity scores. Trial Court Opinion, 6/24/2015, at 2-3. Appellant argues “the monetary amount at issue was $22,686.84, making the appropriate offense gravity score a five (5) rather than a six (6).” Appellant’s Brief at 18. However, as set fo rth above, the record suggests otherwise. Again, the parties agree the c ost of the geothermal unit was $28,358.54 and Appellant paid Mr. Boyer 10% of the total amount owed. Hence, the trial court’s assessment that the remaining balance owed totaled $25,522.69 was accurate. Accordingly, the application of an offense gravity score of six was proper. Hence, we discern no abuse of discretion. Moreover, Appellant concedes that the sentence impo sed fell within the guideline ranges under either an offense gravit y score of five or six. See Appellant's Brief, at 15. We note, “where a senten ce is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.” Lamonda , 52 A.3d at 372. Here, the monetary value was just slightly over the $25,000.0 0 line. The trial court imposed a sentence that overlaps the standard range of sentences under either an offense gravity score of five or six. We discern no abuse of

discretion.J-S32020-15

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Judgment of sentence affirmed. Remand for resenten cing on restitution. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/3/2015