J-A17014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT J. KEARNS

Appellant No. 2480 EDA 2013 

Appeal from the Judgment of Sentence July 31, 2013

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0000829-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 13, 2015

Robert J. Kearns appeals from the judgment of sentence imposed on 

July 31, 2013, in the Court of Common Pleas of Northampton County. On 

January 11, 2013, a jury convicted Kearns and his co-defendant, Patrick 

Joseph McLaine,

1

of theft by failure to make required disposition of funds 

received.2 As will be discussed below, the court ultimately sentenced Kearns 

____________________________________________

1

 McLaine has also filed an appeal at Docket No. 2600 EDA 2013, raising 

substantially similar claims. The Commonwealth has filed cross-appeals with 

respect to Kearns and McLaine at Docket Nos. 1682 EDA 2013 and 1685 EDA 

2013, respectively. On April 2, 2015, the Commonwealth filed an application 

for consolidation of all four companion cases. By per curiam order entered 

on April 21, 2015, this Court denied the Commonwealth’s application for 

consolidation, but directed that the appeals be listed consecutively. 

2

 18 Pa.C.S. § 3927.
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to a term of six to 12 months’ incarceration, 12 months’ probation, a fine of 

$2,500.00, and restitution in the amount of $832,460.00. On appeal, 

Kearns raises numerous issues, concerning the legality of his sentence, the 

sufficiency of the evidence, the weight of the evidence, the admissibility of 

certain evidence, and prosecutorial misconduct. After a thorough review of 

the submissions by the parties, the certified record, and relevant law, we 

affirm the conviction, but are constrained to vacate the sentence and 

remand for resentencing. 

The facts and procedural history are as follows.3 Kearns and McLaine 

were the two principals of a company known as Municipal Energy Managers, 

Inc. (“MEM”). On July 2, 2007, Kearns and McLaine entered into a written 

contract with the Township of Bethlehem, a municipality in Northampton 

County (“Bethlehem Township”). The contract provided MEM would act as 

an agent for Bethlehem Township to facilitate the purchase of township 

street lights from the public utility company, Pennsylvania Power and Light 

(“PPL”).4 Kearns and McLaine drafted the contract and determined the total 

cost to do all work necessary for Bethlehem Township to purchase the street 

____________________________________________

3

 The trial court set forth a detailed and thorough factual and procedural 

history in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 6/2/2014, 

at 1-31. We will refer back to the court’s recitation in our analysis.

4

 The purpose was to save the township money by accessing a lower utility 

rate for municipal-owned streetlights.
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lights from PPL. A price of $1,001,230.00 was to be used to pay any and all 

costs of the purchase including, but not limited to, paying PPL for the 

transfer of the street lights. The contract provided performance was to 

occur within a period of 12 to 18 months, ending anywhere between July 2, 

2008 and January 2, 2009, and was considered completed when ownership 

of the street lights was transferred from PPL to the township. Additionally, 

the contract stated the township would be receiving the lower utility rate by 

January of 2009. For its services, MEM was to receive a five percent 

commission of $50,060.00.

To begin performance, MEM requested Bethlehem Township pay them 

$832,460.00. On July 3, 2007, Kearns and McLaine received a check in the 

requested amount. On July 5, 2007, the check was deposited into a general 

corporate bank account in the name of MEM, which Kearns and McLaine 

jointly controlled.5 

In October 2007, Kearns and McLaine wrote checks from the MEM 

general corporate account to themselves. Specifically, on October 1, 2007, 

a check was made payable to Kearns for the amount of $366,600.00. That 

same day, a check was issued to McLaine in the amount of $499,945.000, as 

well as a second check to McLaine in the amount of $109,059.00. All three 

____________________________________________

5

 With respect to the contract, there was no escrow requirement that 

Bethlehem Township’s funds be held separately from the rest of MEM’s other 

accounts. See N.T., 1/10/2013, at 162 (“The evidence reveals that the 

Commonwealth admits there was no escrow requirement.”).
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checks were signed by both defendants. At trial, Kearns and McLaine 

testified these checks represented bonuses paid to themselves.

On August 5, 2009, PPL sent a letter to Kearns, stating that it had 

learned MEM was performing unauthorized work on its streetlights. The 

letter identified Bethlehem Township as one of the affected municipalities.

Despite receiving the funds, MEM did not contact PPL to initiate the 

transfer of street lights until August 10, 2009, eight months past the 18-

month completion deadline, by sending a letter announcing its intent to 

purchase the streetlights. On September 17, 2009, PPL sent a letter to 

MEM, outlining the estimated costs of the total project, which was to be 

$271,180.00, well below MEM’s estimate of $1,001,230.00. The letter also 

requested MEM make a deposit to PPL in the amount of $22,525.00 in order 

to initiate the process of the light transfer. Kearns and McLaine did not 

respond to PPL’s request or make the payment. On October 5, 2009, MEM 

sent Bethlehem Township an invoice for $131,438.00. The township did not 

pay it.

In January of 2010, a grand jury investigation was conducted in 

relation to this matter. On January 26, 2012, the grand jury returned a 

presentment, recommending the arrest of Kearns and McLaine on charges of 

theft by failure to make required disposition of funds received, 

misapplication of entrusted property, and criminal conspiracy. 
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A criminal complaint was then filed on February 16, 2012. As noted 

above, the two men were tried together. The joint jury trial began on 

January 7, 2013. On January 11, 2013, the jury found Kearns and McLaine 

guilty of theft by failure to make required disposition of funds received, but 

not guilty of the other two charges.

On April 12, 2013, and April 19, 2013, McLaine and Kearns, 

respectively, were both sentenced to a term of 16 of 60 months’ 

incarceration, 60 months of probation, and restitution in the amount of 

$832,460.00. The court graded the theft offense as a third-degree felony 

pursuant to 18 Pa.C.S. § 3903 (grading of theft offenses) on the basis that 

the value of the theft was in excess of $2,000.00.

On April 24, 2013, Kearns and McLaine filed motions challenging the 

trial court’s grading of the offense as a third-degree felony pursuant to 

Apprendi v. New Jersey, 530 U.S. 466 (2000). They argued that the 

verdict slip could not support a felony conviction because it did not require 

the jury to determine the value of the property that gave rise to the 

convictions, i.e., the commencement check issued by Bethlehem Township. 

The trial court agreed and on May 31, 2013, granted the motion. 

On June 4, 2013, the court re-sentenced Kearns and McLaine with 

regard to the theft offense, grading it as a third-degree misdemeanor, and 

ordered them to serve a term of six to 12 months’ incarceration, 60 months’ 

probation, a fine of $2,500.00, and restitution in the amount of 
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$832,460.00. Subsequently, on June 13, 2013, Kearns and McLaine filed 

post-sentence motions, including a motion for reconsideration of sentence. 

On July 31, 2013, the trial court entered an order, modifying their sentences 

to a consecutive period of probation of 12 months rather than 60 months. 

The remainders of their sentences were not changed. This appeal followed.6

Kearns raises the following issues on appeal:

1. Whether the jury’s verdict was supported by sufficient 

evidence?

2. Whether the jury’s verdict was against the weight of the 

evidence?

3. Whether the trial court erred in permitting the introduction 

of [Kearns]’s alleged prior bad acts arising in other 

jurisdictions [in violation of Pa.R.E. 404(b)] including the 

Borough of Coplay, Lehigh County, Pennsylvania where the 

Honorable Kelly L. Banach dismissed the alleged criminal 

conduct on February 4, 2014?

4. Whether the trial court erred in refusing to grant subpoena 

requests for [PPL] records which were necessary and 

essential to a full and complete defense?

5. Whether the trial court erred in denying a motion for a 

mistrial based on the prosecutor’s comments during 

closing arguments?

6. Whether the sentence imposed by the trial court on July 

31, 2013 is illegal?

____________________________________________

6

 On September 3, 2013, the trial court ordered Kearns to file a concise 

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

Following an extension and change of counsel, Kearns filed a concise 

statement on October 17, 2013. The trial court issued an opinion pursuant 

to Pa.R.A.P. 1925(a) on June 2, 2014.
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Kearns’s Brief at 4.7

In his first issue, Kearns complains there was insufficient evidence to 

support his theft conviction. Kearns’s Brief at 29. Specifically, Kearns 

contends his corporation, MEM, completed a portion of its contractual duty 

by using the funds with respect to the following: (1) marketing and financial 

advising; (2) performing physical make ready work on the streetlights 

consistent with its prior dealings with PPL; (3) writing letters to PPL 

regarding its performance; and (4) completing maintenance work on broken 

lights. Id. at 32.8 Kearns also incorporates the argument of his codefendant, McLaine, regarding sufficiency of the evidence.9

____________________________________________

7

 We have reorganized and renumbered the issues for our analysis.

8

 Kearns compares the facts in this case to another similar criminal matter 

in Coplay Borough, Lehigh County, in which he is a defendant. He points out 

the judge in that case found the first element of the crime could not be met 

for a prima facie case and granted an omnibus pretrial motion. See

Kearns’s Brief at 33.

9

 In McLaine’s brief, he states three of the four elements were not met. 

With respect to the first element, he argues the Commonwealth did not 

demonstrate he “obtained the property of another” because MEM and 

Bethlehem Township entered into a binding contract, Bethlehem Township 

made an advance payment pursuant to the contract, and MEM partially 

performed under the contract. McLaine’s Brief at 22-23. In support of his 

argument, he notes the contract called for “make ready work” to be 

completed on the streetlights prior to completion, and that MEM actually did 

perform such work was evidenced by a $50,000 invoice it received from a 

subcontractor regarding the project. Id. at 24. Furthermore, McLaine 

claims MEM’s actions indicated both an intention to comply with the contract 

from its inception and partial performance of the contractual obligation. Id.

at 25. With respect to the second element, McLaine argues the 

(Footnote Continued Next Page)
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Our standard of review for such challenges is well-settled: 

[W]hether[,] viewing all the evidence admitted at trial in 

the light most favorable to the [Commonwealth as 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 factfinder 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.

Commonwealth v. Troy, 2003 PA Super 340, 832 A.2d 1089, 

1092 (Pa.Super.2003) (citations omitted).

(Footnote Continued) _______________________

Commonwealth did not establish the conduct at issue was “subject to an 

agreement or known legal obligation upon the recipient to make specific 

payments or other disposition thereof” because he claims that while a 

deposit was tendered to MEM, Bethlehem Township “oversimplifies” the 

terms of the contract, and although some of the money was to be used to 

purchase the streetlights, other money was to be used for other services 

provided by MEM and were provided pursuant to the terms of the 

agreement, including the make ready work and maintenance of streetlights. 

Id. at 30-31. He alleges the agreement is silent with respect to MEM’s 

obligations regarding the funds after they had been tendered by the 

municipality. Id. at 31. As to the third element, McLaine asserts the 

Commonwealth did not establish he “intentionally dealt with the property 

obtained as his own” because the Commonwealth presented no evidence 

that McLaine had the intent to handle the funds tendered to MEM by 

Bethlehem Township as his own property and, assuming arguendo it was 

true, the funds became MEM’s property at the time they were passed from 

the municipality to MEM. Id. He also avers that as to the dealing with 

money improperly, the Commonwealth only demonstrated MEM paid PPL the 

township’s money to cover its debts. Id. at 33. McLaine proclaims he did 

not personally deal with that money or act as though it was his own. Id. 
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Commonwealth v. Gonzalez, 109 A.3d 711 (Pa. Super. 2015), appeal 

denied, __ A.3d __ [270 MAL 2015] (Pa. Sept. 29, 2015).

Theft by failure to make required disposition of funds received is 

defined 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. § 3927.

The crime has four elements: 

1. The obtaining of property of another;

2. Subject to an agreement or known legal obligation upon the 

recipient to make specified payments or other disposition 

thereof;

3. Intentional dealing with the property obtained as the 

defendant’s own; and

4. Failure of the defendant to make the required disposition of 

the property.

Commonwealth v. Crafton, 367 A.2d 1092, 1094-1095 (Pa. Super. 1976).

The trial court initially addressed the sufficiency of the evidence claim 

when it determined prior to trial that the Commonwealth presented a prima 

facie case of theft, opining:
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At the outset, we note that there is significant overlap in 

the case law in the application of these elements. In our view, 

the relevant inquiry is whether the totality of the evidence 

supports a prima facie finding of criminal intent to defraud. See, 

e.g., Commonwealth v. Lagana, 662 A.2d 1127 (Pa. Super. Ct. 

1995). Accordingly, we will analyze the first two elements in 

depth and then apply our conclusions in a summary fashion to 

the third and fourth elements.

We begin with the Defendants’ contention that their receipt 

of the commencement check does not constitute “obtaining of 

property of another” pursuant to the Superior Court of 

Pennsylvania’s holding in Commonwealth v. Austin, 393 A.2d 36 

(Pa. Super. Ct. 1978). In Austin, the Superior Court overturned 

a non-jury conviction for Theft in a case where the appellantcontractor had accepted advance money on a construction 

contract but rendered only partial performance thereunder. See 

id. After a careful review of the record, the Superior Court 

concluded that there was insufficient proof of criminal intent to 

affirm the conviction. Id. at 41.

With respect to the first element, the court held that the 

appellant’s acceptance of advance money did not constitute 

“obtaining of property of another.” Id. at 38. It based this 

conclusion on the following passage from Commonwealth v. 

Bartello, 301 A.2d 885 (Pa. Super. Ct. 1973), wherein the 

Superior Court reversed a conviction for fraudulent conversion:

... ‘in a single contract providing for certain services at 

certain prices that where there is a transfer of money, 

within the contract price, even in advance of the due date, 

that title as well as possession passes and only a 

contractual obligation remains.’ Id. at 38 (quoting 

Bartello, 301 A.2d at 887).

Based upon this authority, the Defendants contend that 

title and possession to the Township’s funds passed to them 

upon receipt. They conclude that they are immune from criminal 

prosecution because a person cannot fraudulently convert his 

own property. We disagree, because we do not read Austin (and 

the related case law) as establishing such a hard and fast rule.

To the contrary, in Austin, the Superior Court reviewed a 

number of factors before concluding that the appellant was not 
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subject to criminal liability, including: (a) his purchase of 

materials for the project and continued performance for about 

two months; (b) his willing provision of an accounting; (c) the 

arguable necessity of his expenditures; (d) his consultation with 

a lawyer before discontinuing the project; (e) his realization that 

the project was a losing proposition; and ([f]) the absence of 

express restrictions on the use of the advance monies. 393 A.2d 

at 38-41.

Likewise, in Commonwealth v. Lagana, 662 A.2d 1127 (Pa. 

Super. Ct. 1995), the Superior Court evaluated all of the 

evidence before concluding that the Commonwealth established 

its prima facie case. The proof of criminal intent in Lagana

consisted of: (1) the defendant’s receipt of municipal funds 

subject to a known obligation to purchase an insurance policy; 

(2) his failure to purchase the policy; (3) his commingling of the 

municipal funds; (4) his use of some or all of the commingled 

funds to finance his own business; (5) his possible 

misrepresentations to various municipal employees; and (6) his 

retention of the township’s money until ordered to return it. 662 

A.2d at 1129-1130.

Applying this standard, we conclude that the totality of the 

circumstances in this case establishes a prima facie showing of 

criminal intent. For one thing, the Defendants inexplicably 

delayed their initiation of formal contact with PPL until eight 

months after the project’s outermost deadline. By that time, 

nearly two years had passed since they wrote personal checks to 

themselves for almost one million dollars from MEM’s corporate 

account. During this interval, the Defendants provided little 

feedback to the Township’s executives concerning their use of 

the commencement check.

In addition, the disparity between MEM’s and PPL’s project 

estimates suggest that the Defendants, who had significant 

experience in the field, deliberately overestimated the project to 

pad their compensation and ensure that MEM’s corporate 

account was flush. Further proof of their criminal intent 

includes: (a) the Defendants’ failure to pay any portion of PPL’s 

initiation fee; (b) their unsatisfactory response to the Township 

Solicitor’s request for an accounting and certification; and (c) 

their inability to recall any justification for the personal checks 

during their depositions.
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Finally, even if some portion of the commencement check 

did pass to the Defendants under Austin, we conclude that it 

would be limited to MEM’s compensation under the Agreement 

plus reasonable costs, a figure considerably less than $832,460.

We turn now to the second element, the requirement that 

the Defendants received the commencement check “subject to 

an agreement of known legal obligation upon the recipient to 

make specified payments or other disposition thereof.” Here, 

the Defendants argue that the Commonwealth has misconstrued 

the Agreement as a cost plus contract instead of a lump sum 

contract. In addition, the Defendants argue that the Agreement 

did not prohibit the commingling of funds or require that they 

place the commencement check into escrow.1

1

 For the purposes of this motion, we accept as true the 

Defendants’ assertion that the commencement check did 

not include a written notation restricting its use once 

disbursed to MEM.

Our research indicates that, in a lump sum contract, the 

contractor is entitled to keep the difference (if any) as profit 

when he completes a project under the fixed total cost. In 

contrast, in a cost-plus contract, the fee is set in advance and 

the contractor is reimbursed for the actual cost of the work. 

Presumably, the Defendants would enjoy unrestricted use of the 

commencement check in a lump sum contract.

It is apparent to the Court, however, that the Agreement 

includes at least one indicator of a cost-plus contract – a fixed 

compensation provision based upon a percentage of the cost of 

the work. Our research suggests that a cost-plus construction 

contract does not provide unfettered discretion over the use of 

advance money. Given this uncertainty, we conclude that it 

would be improper to make a potentially dispositive 

determination as to whether the Agreement is a lump sum or 

cost-plus contract.

Moreover, as noted above, we view the gap between the 

cost estimates as rebuttable proof of the Defendants’ criminal 

intent. In this regard, we observe that the Defendants’ 

compensation under the Agreement was directly tied to their 

inflated cost estimate.
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Next, we address the Defendants’ assertion that they were 

not prohibited by law or contract from depositing the 

commencement check into MEM’s corporate account. We agree 

with this assertion, in principle. See Commonwealth v. Crafton, 

367 A.2d 1092 (Pa. Super. Ct. 1976) (an agent may commingle 

funds without penalty; criminal liability does not attach until the 

requirement payments are not made). However, case law 

establishes that the commingling of funds does give rise to 

criminal charges when the actor has exhausted the money on 

unrelated expenses and consequently cannot meet his payment 

obligation.

For example, in Commonwealth v. Fritz, 470 A.2d 1364 

(Pa. Super. Ct. 1983), the Superior Court held that the 

appellants’ deliberate practice of commingling ticket sales in the 

terminal’s operating account and then using the funds to pay its 

operating expenses established that the appellants dealt with the 

receipts as if they were their own. 470 A.2d at 1376-1368. This 

evidence, in conjunction with proof of their inability to repay the 

ticket proceeds upon request, was enough to uphold their 

convictions. Id. at 1368-1369.

Here, the evidence establishes that the Defendants used 

the commingled funds to pay themselves bonuses far in excess 

of their compensation under the Agreement. The Defendants 

cannot plausibly argue that these expenditures were necessary 

for MEM’s continued operation or the project’s completion. 

Moreover, the payments depleted MEM’s corporate account to a 

level below even PPL’s minimal cost estimate.

We acknowledge that, without more, such evidence would 

be insufficient to charge the Defendants with Theft – criminal 

liability does not attach until the required payments are not 

made. However, we disagree with the Defendants’ assertion 

that all preconditions to transfer had to be in place for criminal 

liability to attach. Instead, we hold that MEM became subject to 

criminal prosecution when it failed to provide a satisfactory 

response to the Township’s February 2010 request for 

certification that it had enough money to complete the project. 

Fritz, 470 A.2d at 1366 (citing Crafton, 367 A.2d at 1094-1095).

We turn now to the third element, the requirement that 

the Defendants intentionally dealt with the Township’s property 

as their own. As noted above, in Commonwealth v. Fritz, the 
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Superior Court held that the terminal owners’ use of commingled 

proceeds to pay operating expenses and companies other than 

those to whom the proceeds should have gone established that 

they had dealt with the property of another as their own. 470 

A.2d at 1366-1367.

Pursuant to Fritz, we find the evidence that the Defendants 

commingled the Township’s money and then used it to pay 

themselves bonuses establishes that they intentionally dealt with 

the Township’s property as their own.

With respect to the fourth and final element, we hold that 

the Defendants’ failure to dispose of the Township’s funds as 

required is established by: (1) their deposit of the 

commencement check into MEM’s corporate account; (2) their 

use of this account to pay themselves bonuses; (3) their failure 

to initiate timely contact with PPL; (4) their minimal feedback to 

the Township’s executives; (5) their failure to pay PPL’s initiation 

fee; (6) their inability to certify that MEM had sufficient funds to 

complete the transfer; and (7) their failure to complete the 

transfer.

Order, 10/15/2012, at 6-12 (some footnotes omitted). Further, in its Rule 

1925(a) opinion, the court opined:

Our subsequent review of the [Pennsylvania] Supreme Court’s 

decision [in] Commonwealth v. Turrell[, 584 A.2d 882 (Pa. 

1990)10] further bolsters our conclusion. We submit that 

____________________________________________

10

 In Turrell, the defendant, an attorney, was charged with three counts of 

theft by failure to make required disposition of funds received. The charges 

stemmed from the defendant’s use of escrow account funds for his own use 

and using other client’s escrow funds to make disbursements. The trial 

court dismissed the charges, and a panel of this Court affirmed its decision. 

The Commonwealth appealed, and the Pennsylvania Supreme Court 

reversed in part, remanding as to two of the charges, but affirming as to the 

third charge. With respect to that third charge, the Supreme Court found 

there was a breach of the defendant’s professional responsibilities, but no 

violation of the criminal statute. Specifically, the Court held:

(Footnote Continued Next Page)
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[Kearns’] position with respect to the purported escrow 

requirement for Theft is unsupported by Pennsylvania law.

...

With respect to partial performance, we acknowledge that 

MEM did present some evidence to this effect, for example, the 

$50,000 payment to Precision Electric. However, there is no 

evidence that MEM used Bethlehem Township’s funds during this 

transaction. The jury could have concluded that MEM was simply 

“robbing from Peter to pay Paul.”

Trial Court Opinion, 6/2/2014, at 35-36 (footnotes omitted). Our review of 

record reveals the exact same evidence was presented at trial and was 

sufficient for the jury to find beyond a reasonable doubt that Kearns 

committed the crime of theft. As such, we agree with the trial court’s 

thorough analysis. Accordingly, we affirm on this basis. Therefore, Kearns’s 

first argument fails.

(Footnote Continued) _______________________

[The] commingling of funds, although ethically reprehensible, 

does not in and of itself constitute a criminal violation of § 

3927(a) of the Crimes Code. Instead, a criminal violation occurs 

when an attorney evinces an intent not to make the required 

payment or disposition. Until such time as payment is due, an 

attorney cannot be considered in violation of § 3927(a), 

although he very well may have violated the Rules of 

Professional Conduct. However, assuming all the other elements 

have been satisfied, once payment is required and an attorney 

fails to make such payment, then a violation of § 3927(a) has 

occurred.

Turrell, 584 A.2d at 886. The Court determined that with respect to the 

facts of the third charge, there was no present obligation to disburse the 

funds held.
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Next, Kearns argues the verdict was against the weight of the 

evidence.11 See Kearns’s Brief at 34. He again incorporates the argument 

of his co-defendant, McLaine, regarding the weight claim, with the exclusion 

of any blame McLaine placed on Kearns. See id. With respect to his weight 

claim, McLaine concisely states:

The argument that the verdict was against the weight of 

the evidence closely follows that presented above in the 

sufficiency argument. Therefore, [McLaine] refers the Court to 

that analysis. Even if the Court were to find [] sufficient 

evidence, the verdict was against the weight of the evidence for 

reasons discussed above, specifically the uncontroverted 

evidence of partial performance, the fact that Kearns, rather 

than [McLaine] was a party to all relevant transactions, and the 

fact that the specific funds of the Municipality cannot be traced 

to [McLaine]’s specific possession. Therefore, this Court should 

remand the case for a new trial.

McLaine’s Brief at 35.

Appellate review of a weight of the evidence claim is well-established:

A weight of the evidence claim concedes that the evidence is 

sufficient to sustain the verdict, but seeks a new trial on the 

ground that the evidence was so one-sided or so weighted in 

favor of acquittal that a guilty verdict shocks one’s sense of 

justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20, 

744 A.2d 745, 751–52 (2000); Commonwealth v. Champney, 

574 Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review, 

an appellate court does not substitute its judgment for the finder 

of fact and consider the underlying question of whether the 

verdict is against the weight of the evidence, but, rather, 

determines only whether the trial court abused its discretion in 

making its determination. Widmer, 560 Pa. at 321–22, 744 

A.2d at 753; Champney, 574 Pa. at 444, 832 A.2d at 408.

____________________________________________

11

 Kearns properly preserved his challenge to the weight of the evidence by 

raising it in a post-sentence motion. See Pa.R.Crim.P. 607(A).
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Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 

134 S.Ct. 1792 (U.S. 2014).

Here, the court found that: “After a thorough review of the record, we 

are convinced that the question of criminal liability was for the jury. We only 

substitute our judgment for that of the jury in the most egregious cases. 

This case falls below that standard.” Trial Court Opinion, 6/2/2014, at 40.

We agree with the court’s rationale. Pursuant to the standard, and in 

conformity with our sufficiency analysis, the evidence in the present matter 

was not ”so one-sided or so weighted in favor of acquittal that a guilty 

verdict shocks one’s sense of justice.” Lyons, 79 A.3d at 1067. As our 

Supreme Court has made clear, we may not reweigh the evidence and 

substitute our judgment for the trial court’s decision. See Lyons, supra. 

Therefore, Kearns’s weight claim fails.

With respect to Kearns’s third argument, he asserts the trial court 

erred in admitting evidence of MEM’s business dealings in other townships as 

prior bad acts because it “lead the Jury to believe that there was similar 

‘criminal’ conduct which occurred by Defendants through their corporation.” 

Kearns’s Brief at 22. Kearns again relies on the fact that a criminal matter, 

pending against him in in Coplay Borough, Lehigh County, was dismissed 
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without a prima facie finding by the trial court. Id. at 24. Additionally, 

Kearns incorporates McLaine’s argument on the issue.12

With respect to an admissibility of evidence claim, our standard of 

review is as follows:

Admission of evidence is within the sound discretion of the trial 

court and will be reversed only upon a showing that the trial 

court clearly abused its discretion. Admissibility depends on 

relevance and probative value. Evidence is relevant if it logically 

tends to establish a material fact in the case, tends to make a 

fact at issue more or less probable or supports a reasonable 

inference or presumption regarding a material fact.

Judicial discretion requires action in conformity with law, upon 

facts and circumstances judicially before the court, after hearing 

and due consideration. An abuse of discretion is not merely an 

____________________________________________

12 In McLaine’s brief, he argues the court erred in admitting evidence of 

prior bad acts because (1) those acts were not convictions, (2) they were 

not substantially related to the case at hand, and (3) they did not fall under 

an exception to the prohibition against the admission of prior bad acts. 

McLaine’s Brief at 36. McLaine notes evidence of uncharged crimes and prior 

bad acts is not admissible at trial to demonstrate a defendant’s propensity to 

commit the crime charged unless an exception to the rule applies. Id. He 

states the Commonwealth sought admission of the evidence, claiming the 

acts constitute an exception to the rule because they fall under a common 

scheme, plan, or design. Id. McLaine argues the exception does not apply 

to the facts of his case where: (1) there was no unity of location since the 

acts took place in different municipalities; (2) there was no unity of time 

because there were years separating all of the actions at issue; and (3) 

there was no modus operandi because each case involved different contracts 

and different breaches following the formation of the contracts. Id. at 40. 

Moreover, he contends the Commonwealth stretches “the common plan, 

scheme, or design exception to its logical limits in an attempt to prove action 

in conformity with prior bad acts and to prove that [he] is a person of 

unsavory character.” Id. Lastly, McLaine complains that the probative 

value of the evidence did not outweigh the prejudice as the introduction of 

this testimony “wrongfully blackened” his character in the mind of the jury. 

Id. at 42. 
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error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill 

will, as shown by the evidence or the record, discretion is 

abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011) 

(citation omitted). 

The admission of evidence of prior bad acts or crimes is governed by 

Pennsylvania Rule of Evidence 404(b), which provides, in relevant part:

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 

not admissible to prove a person's character in order to show 

that on a particular occasion the person acted in accordance with 

the character.

(2) Permitted Uses. This evidence may be admissible for another 

purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident. In a criminal case this evidence is admissible 

only if the probative value of the evidence outweighs its potential 

for unfair prejudice.

Pa.R.E. 404(b)(1-2). “Evidence is relevant if it logically tends to establish a 

material fact in the case, tends to make a fact at issue more or less 

probable, or supports a reasonable inference or presumption regarding the 

existence of a material fact.” Commonwealth v. Minerd, 753 A.2d 225, 

230 (Pa. 2000) (citations omitted). Evidence is prejudicial only when it is 

“so prejudicial that it may inflame the jury to make a decision based upon 

something other than the legal propositions relevant to the case.” 
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Commonwealth v. Colon, 846 A.2d 747, 753 (Pa. Super. 2004), (citation 

omitted), appeal denied, 870 A.2d 320 (Pa. 2005).

The court summarized the trial testimony at issue as follows:

7. Michael Corriere

Attorney Michael Corriere has been the solicitor for the 

Borough of Walnutport since 2002.

On July 30, 2009, Walnutport entered into a contract with 

MEM. The estimated cost was $192,000, with MEM to receive a 

5% commission. Walnutport paid a commencement fee of 

$107,620. Corriere understood that the project would be 

complete by 2010, but that did not occur.

Nothing happened until October 2011. At that time, 

Borough Council authorized a second payment to MEM. Kearns 

assured Corriere that the deal was close to a conclusion and that 

the Borough would receive a rebate.

Nothing happened after the second payment. In January 

of 2012, Borough Council asked Corriere to contact Kearns for a 

status report. Kearns did not respond.

Corriere then contacted PPL and spoke with [Damon] 

Obie[, senior counsel for PPL]. Borough Council authorized him 

to determine whether it could complete the conversion without 

MEM. PPL provided a “ballpark estimate” of $53,000. To date, 

Walnutport does not own its streetlights.

MEM did not refund the commencement payments. It did 

reimburse Walnutport $7,500.

On cross-examination, Corriere conceded that he 

contacted PPL after learning that [the Commonwealth] had filed 

criminal charges against MEM. He acknowledged receipt of the 

July 13, 2010 memo.[13] Corriere never dealt with McLaine.

____________________________________________

13

 The July 13, 2010, memo was a document MEM provided to several 

municipalities, informing them that MEM had encountered problems with PPL 

(Footnote Continued Next Page)
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8. Steven Seacrest

Steven Seacrest has been the Richland Township Manager 

for 12 years. He oversees its day-to-day operations. On March 

12, 2009, Richland Township entered into a contract with MEM. 

MEM provided a cost estimate of $281,000 and received a 5% 

commission.

Richland Township made commencement payments of 

$165,000. It borrowed money for the project, which was never 

completed. 

PPL informed Richland Township that MEM had not 

contacted PPL on its behalf. Richland Township had several 

meetings with Kearns, who invariably stated that MEM was 

having problems with PPL but moving the project forward.

To date, Richland Township does not own its streetlights. 

MEM did not refund the commencement fee.

On cross-examination, Seacrest conceded that MEM set up 

an online system for reporting lighting outages and trained 

Richland Township staff in its use. In addition, PPL did not offer 

to reduce Richland Township’s tariff to the municipal-owned rate.

9. Sandra Gyecsek

Sandra Gyecsek is the Secretary and Treasurer for the 

Borough of Coplay. She handles its day-to-day operations, 

including accounts payable, accounts receivable, and payroll. 

Gyecsek has been with the Borough for 15 years.

In 2009, Coplay entered into an agreement with MEM. The 

total estimated cost was $291,700. MEM received a 5% 

commission of $14,585.

In June of 2009, Coplay paid MEM $160,182. It borrowed 

money for the project. Afterward, nothing happened.

(Footnote Continued) _______________________

and PPL’s refusal to treat the new municipalities the way they treated the 11 

successful prior transactions. See N.T., 1/9/2013, 98-99.
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In July of 2010, PPL informed Gyecsek that it had no 

record of MEM representing Coplay. Coplay then contacted PPL 

to determine if it could complete the project without MEM. In 

April of 2012, PPL provided a “ballpark estimate” of $83,120.

MEM did not transfer any money to PPL on Coplay’s behalf 

or return the commencement fee. To date, Coplay does not own 

its streetlights. Gyecsek mainly dealt with Kearns and never met 

McLaine.

On cross-examination, Gyecsek acknowledged that 

Coplay’s solicitor, Broughal & DeVito, had reviewed the contract 

before the Borough signed it. She conceded that she could not 

gauge the accuracy of PPL’s “ballpark estimate.”

Gyecsek confirmed that the Borough received the July 13, 

2010 memo. PPL did not inform Coplay that it could only 

process one application at a time.

Trial Court Opinion, 6/2/2014, at 18-20.14

On January 7, 2013, the court entered an order, permitting admission 

of the proposed testimony, explaining that the Commonwealth’s use of the 

Defendants’ dealings with Coplay Borough, Richland Township, and 

Walnutport Borough was admissible to prove the Defendants’ common 

scheme or plan. See Order, 1/7/2013, at 3. The court’s order also 

permitted the Defendants to raise specific objections to the Commonwealth’s 

Rule 404(b) evidence at trial. Subsequently, in its Rule 1925(a) opinion, the 

court also stated: “We further submit that the [Rule] 404(b) evidence 

introduced at trial was proper because it tended to establish the Defendants’ 

____________________________________________

14

 This evidence and issue was also discussed extensively prior to trial at 

the January 4, 2013, pre-trial hearing. See N.T., 1/4/2013, at 80-94.
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modus operandi of commingling funds, failing to deliver promised services, 

making repeated empty assurances, withdrawing from communication, and 

refusing to pay refunds.” Trial Court Opinion, 6/2/2014, at 37.

In considering whether evidence is admissible under the common plan 

exception, we are guided by the following:

When ruling upon the admissibility of evidence under the 

common plan exception, the trial court must first examine 

the details and surrounding circumstances of each criminal 

incident to assure that the evidence reveals criminal 

conduct which is distinctive and so nearly identical as to 

become the signature of the same perpetrator. Relevant 

to such a finding will be the habits or patterns of action or 

conduct undertaken by the perpetrator to commit crime, 

as well as the time, place, and types of victims typically 

chosen by the perpetrator. Given this initial 

determination, the court is bound to engage in a careful 

balancing test to assure that the common plan evidence is 

not too remote in time to be probative. If the evidence 

reveals that the details of each criminal incident are nearly 

identical, the fact that the incidents are separated by a 

lapse of time will not likely prevent the offer of the 

evidence unless the time lapse is excessive. Finally, the 

trial court must assure that the probative value of the 

evidence is not outweighed by its potential prejudicial 

impact upon the trier of fact. To do so, the court must 

balance the potential prejudicial impact of the evidence 

with such factors as the degree of similarity established 

between the incidents of criminal conduct, the 

Commonwealth’s need to present evidence under the 

common plan exception, and the ability of the trial court to 

caution the jury concerning the proper use of such 

evidence by them in their deliberations.

Commonwealth v. G.D.M., Sr., 2007 PA Super 169, 926 A.2d 

984, 987 (Pa. Super. 2007), appeal denied, 596 Pa. 715, 944 

A.2d 756 (2008) (quoting Commonwealth v. Smith, 431 Pa. 

Super. 91, 635 A.2d 1086, 1089 (Pa. Super. 1993)).
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Although “remoteness in time is a factor to be considered in 

determining the probative value of other crimes evidence under 

the theory of common scheme, plan or design, the importance of 

the time period is inversely proportional to the similarity of the 

crimes in question.” Commonwealth v. Aikens, 2010 PA 

Super 29, 990 A.2d 1181, 1185 (Pa. Super. 2010), appeal 

denied, 607 Pa. 694, 4 A.3d 157 (2010) (holding evidence of 

defendant’s prior sexual assault was admissible under common 

scheme exception despite nearly ten-year gap between periods 

of abuse, where victims were of similar age and both were 

daughters of defendant; defendant initiated contact with each 

victim during overnight visit in his apartment; defendant began 

sexual abuse by showing victims pornographic movies; and 

assaults occurred in bed at night).

Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa. Super. 2015).

Initially, we note defense counsel did not raise specific objections at 

trial to the admissibility of this evidence. Second, contrary to the 

Defendants’ suggestion that there were distinct differences in the prior bad 

acts with regard to this case, the record reveals the following factual 

similarities between the present case and the defendants’ prior acts: (1) 

Kearns and McLaine entered into written contracts with municipalities for the 

transfer of street lights from PPL to the municipalities; (2) the contracts 

contained substantially similar language, including MEM’s performance in 

obtaining ownership of the street lights; (3) the contracts required the 

municipalities to make payments upfront to Kearns and McLaine for 

performance and the defendants would receive a 5% commission fee; (4) 

Kearns and McLaine either delayed or never contacted PPL to begin the 

streetlight process; (5) McLaine’s and Kearns’s proposed costs of 

transferring the lights to the municipalities substantially exceeded the actual
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amounts estimated by PPL; and (6) Kearns and McLaine failed to perform 

their obligation under the contracts. Therefore, despite Kearns’s argument, 

we conclude that the trial court did not abuse its discretion in determining 

that the evidence of the prior bad acts satisfied the requirements of the 

common scheme, plan, or design exception, and the probative value of the 

evidence outweighed any prejudicial effect. Accordingly, this issue fails.

Next, Kearns asserts the trial court erred in quashing his subpoena for 

PPL records because they were relevant and necessary to the presentation of 

a defense in his case. See Kearns’s Brief at 24. By way of background, 

shortly before trial, on December 28, 2012, Kearns served a subpoena on 

PPL requesting records of its dealings with MEM, and the municipalities that 

were involved with MEM and PPL, regarding streetlight transactions. See

N.T., 1/4/2013, at 104. Argument was heard regarding the subpoena on 

January 4, 2013. Counsel for PPL presented a motion to quash the 

subpoena, asserting the request “to produce involves approximately twentyeight municipalities spanning from the years 2002 up until 2009” was 

“overly burdensome.” Id. at 105. The court granted PPL’s motion to quash 

the subpoena on January 7, 2013. See Order, 1/7/2013.

Kearns contends the records were necessary and admissible because: 

[He] attempted to prove that PPL took actions which frustrated 

the purposes of any contract, and therefore, rendered MEM 

unable to perform. The information contained in PPL files may 

have assisted in the defense of the criminal charges as well as in 

the cross-examination of esteemed PPL Counsel. 
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Id. at 26.

Generally, “the standard of review regarding a motion to quash a 

subpoena is whether the trial court abused its discretion.” Leber v. 

Stretton, 928 A.2d 262, 266 (Pa. Super. 2007), appeal denied, 945 A.2d 

172 (Pa. 2008).15 In its Rule 1925(a) opinion, the court concisely noted it 

did not abuse its discretion in sustaining this motion because “PPL could not 

possibly produce this information on the eve of trial.” Trial Court Opinion, 

6/2/2014, at 37.

We agree with the trial court’s finding. Kearns waited until ten days 

before trial to serve the subpoena and requested seven years of records for 

numerous municipalities. Moreover, as counsel for PPL suggests, some of 

the information requested was not relevant to the criminal matter at hand, 

there were many departments involved in the streetlight system that would 

have needed to be notified, and there was concern over attorney/client 

privilege. See N.T., 1/4/2013, at 106, 113. Likewise, PPL counsel points 

out Kearns received substantial discovery from the Commonwealth prior to 

trial that assisted in the presentation of his defense. Id. at 114. 

Accordingly, we agree the trial court did not abuse its discretion in granting 

the belated motion and Kearns’s claim is without merit. 

____________________________________________

15

 See also Commonwealth v. Niemetz, 422 A.2d 1369, 1373 (Pa. 

Super. 1980) (“The decision to grant or deny a motion to quash is within the 

sound discretion of the trial judge and will be reversed on appeal only where 

there has been a clear abuse of discretion.”).
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In Kearns’s fourth argument, he alleges the court erred in failing to 

grant a mistrial during the Commonwealth’s closing argument because the 

district attorney made improper statements regarding Kearns and McLaine. 

See Kearns’s Brief at 26-29. 

Kearns points to the following statements:

1. But what happened was they started to use other people’s 

money all the time. So they thought they could take 

Bethlehem Township’s when they put it in their account, 

spend it all, and then take Bethlehem Township’s money, put 

it in this here. It’s li[ke] a Ponzi Scheme. They are taking 

money from here, using it for this purpose, and the whole 

thing comes crashing down on them.

2. “This statute which is passed by our legislature is to protect 

people who entrust money to other people for specific 

purposes. If you guys think this is a bad law, you could find 

them not guilty and say, you know, I don’t think this is a 

good law. 

So next time you give $20,000 to the real estate agent 

to buy a house, and he says, I’m sorry, I can’t get this house 

for you, he gets to keep[] it. Doesn’t have to give it back. 

Oh, sue me. I’m bankrupt. Good luck.”

3. “These guys are crooks in suits, ladies and gentlemen, in 

suits; not wearing a bandana over their face, suits and pencils 

and papers and computers and lawyers and accountants and 

lawyers.”

N.T., 1/10/2013, at 203, 213-214, 218.

We are guided by the following:

We review the trial court’s decision to deny a mistrial for an 

abuse of discretion. A mistrial is necessary only when the 

incident upon which the motion is based is of such a nature that 

its unavoidable effect is to deprive the defendant of a fair trial by 

preventing the jury from weighing and rendering a true verdict. 
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A mistrial is inappropriate where cautionary instructions are 

sufficient to overcome any potential prejudice.

Commonwealth v. Bedford, 50 A.3d 707, 712-713 (Pa. Super. 2012) 

(citations and internal quotation marks omitted), appeal denied, 57 A.3d 65

(Pa. 2012).

Moreover, 

[t]he legal principles relevant to a claim of prosecutorial 

misconduct are well established. 

Comments by a prosecutor constitute reversible 

error only where their unavoidable effect is to 

prejudice the jury, forming in [the jurors’] minds a 

fixed bias and hostility toward the defendant such 

that they could not weigh the evidence objectively 

and render a fair verdict.

Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 

307 (Pa. 2011) (citation omitted).

While it is improper for a prosecutor to offer any personal 

opinion as to the guilt of the defendant or the credibility of the 

witnesses, it is entirely proper for the prosecutor to summarize 

the evidence presented, to offer reasonable deductions and 

inferences from the evidence, and to argue that the evidence 

establishes the defendant’s guilt. Id. at 306-07; Chamberlain, 

supra at 408. In addition, the prosecutor must be allowed to 

respond to defense counsel’s arguments, and any challenged 

statement must be viewed not in isolation, but in the context in 

which it was offered. Hutchinson, supra at 307. “[The] 

prosecutor must be free to present his or her arguments with 

logical force and vigor,” and comments representing mere 

oratorical flair are not objectionable. Id. at 306-07 (citation 

omitted).

Commonwealth v. Thomas, 54 A.3d 332, 337-338 (Pa. 2012), cert. 

denied, 134 S. Ct. 173 (U.S. 2013).
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Here, the record reveals the following. At the end of the prosecutor’s 

closing argument, counsel for McLaine objected to the statements at issue. 

N.T., 1/10/2013, at 223. Counsel for Kearns then joined the motion. Id. at 

224. In response to the first statement regarding the “Ponzi scheme,” the 

court imparted a cautionary instruction to the jury. N.T., 1/11/2013, at 3, 

8. Specifically, the court stated:

[T]here was a reference to the overall behavior of the 

Defendant as constituting a Ponzi Scheme. You’ve heard that 

reference there. That is sort of a buzz word, but this case does 

not involve a Ponzi Scheme. That term is used to describe a 

fraudulent investment scheme where later investors generated 

artificially high dividends and higher dividends than the other 

investors.

So the District Attorney used that term in a slang context, 

but I don’t want you to gravitate to the belief that this behavior 

is alleged in any way to be a Ponzi Scheme. 

Id. at 8.

With respect to the second statement regarding the prosecutor’s 

personal opinion, the court did not find “any support that he interjected his 

personal opinion in an improper way in his closing.” Id. at 3. Lastly, with 

regard to the “crooks in suits” comment, the court determined it be a 

“slang,” noting, “These Defendants are charged with thefts, and he’s made it 

quite clear, the prosecution has made it clear, these are thefts. And he went 

to some length to define the various types of thefts in this matter ... So I 

intend to tell the jury that the use of slang is -- it's not improperly 

inflammatory[.]” Id. at 4.
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We are inclined to agree with the court’s determinations. With respect 

to the cautionary instruction, the “law presumes that the jury will follow the 

instructions of the court.” Commonwealth v. Miller, 819 A.2d 504, 513 

(Pa. 2002), cert. denied, 540 U.S. 827 (2003). Moreover, the 

“Commonwealth is entitled to comment during closing arguments on matters 

that might otherwise be objectionable or even outright misconduct, where

such comments constitute fair response to matters raised by the defense, or 

where they are merely responsive to actual evidence admitted during a 

trial.” Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012). 

Viewing the prosecutor’s comments in context, they were in response to 

matters raised by the defense as to whether the defendants actually 

committed a theft. Therefore, we conclude the prosecutor’s remarks during 

closing arguments did not so prejudice the jury that they could not weigh 

the evidence objectively. Accordingly, we find the court did not abuse its 

discretion in denying Kearns’s motion for a mistrial, and his fourth argument 

fails. See Hutchinson, 25 A.3d at 307.

Lastly, Kearns contends the court imposed an illegal sentence.16 

Kearns’s Brief at 20. He points out that the maximum penalty for theft by 

____________________________________________

16

 Kearns notes that prior counsel did not raise this issue in his concise 

statement. Kearns’s Brief at 20. Nevertheless, because the argument 

concerns the legality of his sentence, it cannot be waived and may be 

reviewed sua sponte. See Commonwealth v. Hankerson, 118 A.3d 415, 

421 n.2 (Pa. Super. 2015).
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failure to make required disposition of funds, a third-degree misdemeanor, is 

one year of incarceration, and his sentence is six to 12 months’ plus one 

year of consecutive probation. Id. He states “the aggregate two-year 

sentence exceed[s] the one-year maximum prescribed by statute.” Id.

Our standard of review is as follows.

A challenge to the legality of a sentence may be raised as a 

matter of right, is not subject to waiver, and may be entertained 

as long as the reviewing court has jurisdiction. If no statutory 

authorization exists for a particular sentence, that sentence is 

illegal and subject to correction. An illegal sentence must be 

vacated. We can raise and review an illegal sentence sua 

sponte. When we address the legality of a sentence, our 

standard of review is plenary and is limited to determining 

whether the trial court erred as a matter of law.

Borovichka, 18 A.3d at 1254 n.8 (internal citations and quotation marks 

omitted). 

As noted above, Kearns’s theft crime was originally graded as a thirddegree felony but on June 4, 2013, the court re-sentenced Kearns, grading it 

as a third-degree misdemeanor, and ordered him to serve a term of six to 

12 months’ incarceration, plus 60 months of probation. Subsequently, on 

July 31, 2013, the trial court entered an order, modifying the sentence to a 

consecutive period of probation of 12 months rather than 60 months. The 

remainder of the sentence was not changed.17

____________________________________________

17

 We note this panel affirmed the grading of Kearns’s offense as a thirddegree misdemeanor in the disposition of the Commonwealth’s appeal at 

Docket No. 1682 EDA 2013.

(Footnote Continued Next Page)
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“A crime is a misdemeanor of the third degree if it is so designated in 

this title or if a person convicted thereof may be sentenced to a term of 

imprisonment, the maximum of which is not more than one year.” 18 

Pa.C.S. § 106(b)(8). Here, Kearns’s 12-month probationary period 

exceeded the one-year limit. See Commonwealth v. Lee, 947 A.2d 199 

(Pa. Super. 2008) (finding the length of the four-year sentence was illegal, 

in that, although the offense was graded as a first degree misdemeanor, 18 

Pa.C.S. § 5511(a)(2.1)(ii) provided for a maximum term of imprisonment of 

two years).18 Accordingly, we are constrained to vacate the judgment of 

sentence and remand this matter for re-sentencing as to the length of the 

probationary period.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2015

(Footnote Continued) _______________________

18

 The trial court deferred to this Court on the issue. See Trial Court 

Opinion, 6/2/2014, at 34.