J-S32020-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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, 2014 

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 conviction for theft by 

failure to make required disposition of funds received.1 Upon review, we 

affirm Appellant’s conviction, but remand for resentencing on restitution. 

 We briefly summarize the facts and procedural history of this case as 

follows. Appellant is a home improvement contractor. 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 practices2 when Appellant 

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1

 18 Pa.C.S.A. § 3927. 

2

 18 Pa.C.S.A. § 4107. 
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purportedly accepted payment and did not complete services. On April 9, 

2014, a jury convicted Appellant of theft by failure to make required 

disposition of funds and acquitted him of deceptive or fraudulent business 

practices. On May 20, 2014, the trial court sentenced Appellant to six 

months to one year of incarceration, followed by two years of probation. 

The trial court also ordered Appellant to pay $22,686.84 to Boyer 

Refrigeration and $4,806.20 to Mr. Ferry as restitution. 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 26, 2014, denying counts V 

and VII of Appellant’s post-sentence motion, which dealt with issues 

pertaining to recusal. The trial court did not address Appellant’s remaining 

claims at that time. On September 25, 2014, Appellant filed a notice of 

appeal. On September 26, 2014, Appellant’s post-sentence motion was 

denied by operation of law. Although the notice of appeal was premature, 

because the trial court had not ruled on the post-sentence motion in its 

entirety, the appeal was perfected once the remaining counts were denied 

by operation of law. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after 

the announcement of a determination but before the entry of an appealable 

order shall be treated as filed after such entry and on the day thereof.”). On 

September 26, 2014, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. 

Appellant timely complied, raising some of the claims he raised previously by 

way of post-sentence motion, but which were not addressed by the trial 

court. On November 17, 2014, the trial court advised 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 memorandum 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 supplemental opinion on June 24, 

2015. 
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 Appellant presents the following issues4 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 jury 

finding that [Appellant] obtained the relevant property 

“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 of 

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 calculating 

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 Commonwealth did not 

present sufficient evidence to support his conviction for theft by failure to 

make required disposition of funds received. Appellant’s Brief at 26-31. 

More specifically, Appellant argues, “where a construction contract does not 

require the specific disposition of funds, payments made to the contractor 

become the property of the contractor at the time of 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 ease of discussion. 
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the contracted work” over the course of “numerous months” 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 that 

established Appellant fraudulently obtained the advanced funds at the 

inception of the contract. Id. at 27. Further, Appellant claims “the record 

does not support a finding that [he] obtained any funds 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 admitted at 

trial in the light most favorable to the verdict winner, 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 evidence 

and substitute our judgment for the fact-finder. In addition, 

we note that the facts and circumstances established 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 probability of 

fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the 

finder 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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citation 

omitted). 
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The legislature defines theft by failure to make required disposition of 

funds received as follows: 

A person who obtains property upon agreement, or subject 

to a known legal obligation, to make specified payments or 

other disposition, whether from such property or its 

proceeds or from his own property to be reserved in

equivalent amount, is guilty of theft if he intentionally deals 

with the property obtained as his own and fails to make the 

required payment or disposition. The foregoing applies 

notwithstanding that it may be impossible to identify 

particular property as belonging to the victim at the time of 

the failure of the actor to make the required payment 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 meet the 

obligations of the agreement. An agent who has received 

funds subject to an obligation to make a required payment 

may commingle funds if he so chooses without penalty as 

long as the obligation for which the money or property is 

entrusted is met in a timely fashion. The language of the 

statute, that a person is guilty of theft by failure to make 

required disposition of funds if he ‘deals with property 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 original). 

 The Commonwealth produced the following evidence at trial. Mr. Ferry 

testified that he contracted with Appellant to build an efficient, economical, 

and environmentally friendly second home on property Mr. Ferry owned near 
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Treasure Lake. N.T., 4/9/2014, at 27. Mr. Ferry was 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 home with about 1500 

square feet and the heat source would be geothermal-based.” Id. at 30. 

Under the written terms of the contract, the proposed 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 amount due 

under the contract in nine payments, including an additional $11,387.35 for 

purported overages not covered under the contract, and Mr. Ferry did not 

make direct payment to Charles Scott Boyer, owner of 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 house. Id. at 34. 

Thereafter, Mr. Boyer contacted Mr. Ferry to inquire as to whether Mr. Ferry 

paid Appellant for the unit. Id. at 34. Subsequently, Mr. Ferry confronted 

Appellant “multiple times” about payment to Mr. Boyer 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 Mr. 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 of “just a little over 
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$2,800.00” to Mr. Boyer, representing 10% of the total 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 remaining 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. Ferry had 

paid him, but “said [Appellant] had spent it elsewhere.” 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 [Appellant’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, and 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. Ferry expected Appellant to 

pay Mr. Boyer. Id. at 148-149. Appellant had one bank account that he 

used for multiple construction contracts and no method of accounting for the 

individual jobs. Id. at 145-147. Appellant paid himself, $700.00 per week, 

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 conviction. Appellant accepted 
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money from Mr. Ferry based upon a contract the parties entered. The 

contract specifically called for the installation of a geothermal unit and 

specifically named Boyer Refrigeration, Heating, and Air Conditioning as the 

entity to perform the work. Mr. Ferry paid Appellant in full for the entirety of 

the work to be completed, including installation of the geothermal unit. 

Appellant commingled funds from multiple construction 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 the agreement with Mr. 

Ferry and, instead of meeting his obligations under the agreement in a 

timely fashion, used those funds as if they were his own property. For all of 

the foregoing reasons, we discern no abuse of discretion in finding sufficient 

evidence to support Appellant’s conviction for theft 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 inappropriate, 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 acquitted of deceptive 

business practices, the trial court erred in ordering 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 of funds supported only the 

$22,686.84 restitution award to Boyer Refrigeration. Thus, he contends: 
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Theft by failure to make required disposition of funds is 

subcategorized within the sentencing guidelines according 

to the monetary value involved in the offense. Where the 

offense involved a monetary value amount between 

$2,000[.00] and $25,000[.00], the appropriate offense 

gravity score is five (5). Where the offense involved a 

monetary amount between $25,000[.00] and 

$100,000[.00], the appropriate offense gravity score is six 

(6). Here, the offense for which [Appellant] was convicted 

involved a monetary amount of $22,686.84, making the 

appropriate offense gravity score five (5). 

Furthermore, due to the miscalculation of the offense 

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 record 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 of 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 imposed 

under either standard range, that does not prevent 

[Appellant] from raising the present challenge to the 

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 acquitted 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 gravity score used by the trial 

court to determine the applicable guideline range for theft by failure to make 

required disposition of funds received. 

First, we address the restitution issue: 
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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 directly 

resulting from the crime, the offender shall be sentenced to 

make restitution in addition to the punishment prescribed 

therefor. 

18 Pa.C.S.A. § 1106(a). “Challenges to the appropriateness 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 in determining the legality 

of a sentence is as follows: 

If no statutory authorization exists for a particular sentence, 

that sentence is illegal and subject to correction. An illegal 

sentence must be vacated. In evaluating a trial court's 

application of a statute, our standard of review is plenary 

and is limited to determining whether the trial court 

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 “erred in ordering 

[Appellant] to pay $4,806.20 to Mr. Ferry in restitution.” Trial Court 

Opinion, 6/24/2015, at 4. Upon review, we also agree. Section 1106 

provides for restitution upon conviction of a crime involving property. Here, 

ordering restitution on the deceptive business practices 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 trial court for resentencing.” 
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Commonwealth v. Benchoff, 700 A.2d 1289, 1294 (Pa. Super. 1997); see 

also Commonwealth v. Dobbs, 682 A.2d 388, 392 (Pa. Super. 1996) 

(noting that while this Court has the option of amending 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 envisioned 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 exact amount of restitution 

due was provided by the Commonwealth, found illegal; case remanded 

because restitution was proper, but not accurate, and 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 resentencing. We have upset the 

sentencing scheme in this case by vacating the portion 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 ordered 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 restitution not properly due 

to Mr. Ferry in its assessment of the restitution due to Boyer Refrigeration. 
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Hence, we vacate those portions of Appellant’s sentence pertaining to 

restitution and remand for resentencing. 

 Next, Appellant challenges the trial court’s assignment of an offense 

gravity score of six to his conviction in sentencing him to a term of 

imprisonment. Appellant’s claim implicates the discretionary aspects of 

sentencing. See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. 

Super. 2012) (en banc) (Appellant argued trial court abused its discretion in 

applying an offense gravity score of eight in calculating the guideline 

ranges). 

A challenge to the discretionary aspects of a sentence 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 sentence 

imposed, an appellant must present a substantial question 

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 discretionary 

aspects of a sentence. Second, the appellant must show 

that there is a substantial question that the sentence 

imposed is not appropriate under the Sentencing Code. That 

is, the sentence violates either a specific provision of the 

sentencing scheme set forth in the Sentencing Code or a 

particular fundamental norm underlying the sentencing 

process. 

Id. In this case, Appellant has complied with the prerequisites. Moreover, 

we previously determined that a claim that the trial court abused its 

discretion in applying an offense gravity score raises a substantial question. 

Id. Hence, we will examine Appellant’s claim. 
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Our standard of review is as follows: 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this 

context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, by 

reference to the record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for reasons 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 abused its 

discretion in assigning an offense gravity score of six to his 

conviction. Plainly stated, Appellant’s argument fails. 

Furthermore, even if [Appellant] is correct that the 

sentencing [c]ourt used the wrong offense gravity score; it 

is of no effect because the sentence imposed is with[in] the 

standard range of either an offense gravity score of five or 

six. 

For first time offenders, the crime of theft by failure to 

make required disposition of funds received carries an 

offense gravity score of five for an offense involving a 

monetary value between $2,000.00 and $25,000.00; and 

an offense gravity score of six for an offense involving a 

monetary value of $25,000.00 to $100,000.00. See 204 

Pa. Code § 303.15. With an offense gravity score of five 

and prior record score of zero, Pennsylvania’s sentencing 

guidelines suggest a standard range of restorative sanctions 

(RS) to nine months of incarceration. With an offense 

gravity score of six and a prior record score of zero, 

Pennsylvania’s sentencing guidelines suggest a standard 

range of three months of incarceration to 12 months of 

incarceration. In either event, a six[-]month incarceration 

sentence is within the standard range of either offense 

gravity score. 
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[Appellant’s] offense gravity score is properly calculated at 

six because he was given $28,358.54 for the geothermal 

system; less the 10% payment he made of $2,835.85; 

leaving a remaining balance of $25,522.69. This warrants 

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 calculated at 

five or six because his six[-]month sentence is within 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 forth above, the record 

suggests otherwise. Again, the parties agree the cost 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 imposed fell within 

the guideline ranges under either an offense gravity score of five or six. See

Appellant's Brief, at 15. We note, “where a sentence 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 $25,000.00 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. 
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Judgment of sentence affirmed. Remand for resentencing on 

restitution. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/3/2015