J-S27017-23

2023 PA Super 213

COMMONWEALTH OF PENNSYLVANIA

v.

TARA ANN SELADONES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 377 MDA 2023

Appeal from the Judgment of Sentence Entered March 1, 2023

In the Court of Common Pleas of Schuylkill County Criminal Division at 

No(s): CP-54-CR-0000145-2022

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

OPINION BY BOWES, J.: FILED OCTOBER 24, 2023

Tara Ann Seladones appeals from the judgment of sentence of one to 

eighteen months of imprisonment plus costs and restitution imposed upon her 

conviction for theft by unlawful taking. We vacate the sentence and remand 

for proceedings consistent with this opinion. 

By way of background, the victim in this matter, Connie Yutko, kept 

currency and silver coins worth approximately $10,000 in a metal firebox in 

the spare bedroom of her home. In October of 2021, after falling ill from

COVID-19, Ms. Yutko was admitted to the hospital where she remained for 

approximately eight days. Shortly after admission, she texted Appellant and 

asked if Appellant would go to her house to take care of her cats. Ms. Yutko 

had previously hired Appellant to watch after her home and pets while on 

vacation. 
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A few weeks after being discharged, Ms. Yutko realized that the firebox 

and all its contents were missing. She contacted the police and provided 

details about the box, currency, and coins to Pennsylvania State Police Trooper 

Steven Kase, Jr. She also informed the trooper that she suspected Appellant 

had taken the items, as no one else was in her home while she was at the 

hospital and there were no signs of forced entry. Trooper Kase then 

interviewed Appellant in a common area outside her apartment building. After 

denying any involvement in the theft numerous times, and after multiple 

assurances from the trooper that Ms. Yutko had no desire to press charges if 

the responsible person came clean, Appellant eventually confessed that she 

took the firebox and items therein to satisfy her gambling habit. The 

confession was recorded with a microphone the trooper was wearing. Trooper 

Kase arrested Appellant several minutes later. 

Appellant was subsequently charged with a single count of theft by 

unlawful taking, graded as a felony of the third degree since the value of the 

objects taken was purported to be over $2,000. The matter proceeded to a 

jury trial, wherein Ms. Yutko and Trooper Kase testified as outlined above. 

The Commonwealth also introduced a portion of the recording of Appellant’s 

confession prior to her arrest. Appellant did not testify. Her defense, as 

developed by the argument of her attorney, was that the confession was 

obtained through coercive and deceptive practices and that Trooper Kase 

rushed to judgment by failing to investigate others who could be responsible. 
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At the conclusion of trial, the jury convicted Appellant of the sole theft count.

Critically, the verdict slip did not contain an interrogatory for the jury to find 

the value of the items taken. Similarly, in the trial court’s closing instructions 

to the jurors, it did not direct them to determine the value of the goods taken. 

On the day Appellant was initially scheduled to be sentenced, she filed 

a motion for extraordinary relief asserting, inter alia, that her conviction 

should be graded as a misdemeanor of the third degree since there was no 

factual finding as to the value of the items stolen. The trial court continued 

sentencing to consider briefs filed by Appellant and the Commonwealth. On 

February 17, 2023, the court entered an opinion and order denying the 

motion. Appellant was subsequently sentenced as indicated above, with the 

theft graded as a felony of the third degree. 

Appellant filed a timely notice of appeal, and both Appellant and the trial 

court complied with Pa.R.A.P. 1925.

1

 Appellant presents the following 

question for our resolution: “Whether the trial judge committed an error of 

law in sentencing [Appellant] for theft by unlawful taking graded as a [third-] 

degree felony instead of a [third-]degree misdemeanor after the jury failed to 

determine the value of the items taken?” Appellant’s brief at 4 (cleaned up).

We begin by observing that a “claim that the court improperly graded 

an offense for sentencing purposes implicates the legality of a sentence.” 

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1 The trial court entered a statement in lieu of opinion, attaching its opinion 

and order dated February 17, 2023.
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Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa.Super. 2013). In 

reviewing such a challenge, “our standard of review is de novo and our scope 

of review is plenary.” Commonwealth v. Stanley, 259 A.3d 898, 992

(Pa.Super. 2021) (citation omitted).

In relevant part, the Crimes Code provides for the grading of theft 

offenses as follows:

§ 3903. Grading of theft offenses

. . . .

(a.1) Felony of the third degree.—[With exceptions not 

pertinent here], theft constitutes a felony of the third degree if the 

amount involved exceeds $2,000, or the property stolen is an 

automobile, airplane, motorcycle, motorboat or other motorpropelled vehicle, or in the case of theft by receiving stolen 

property, if the receiver is in the business of buying or selling 

stolen property.

. . . .

(b) Other grades.—Theft not within . . . (a.1) . . . constitutes a 

misdemeanor of the first degree, except that if the property was 

not taken from the person or by threat, or in breach of fiduciary 

obligation, and:

(1) the amount involved was $50 or more but less than $200 

the offense constitutes a misdemeanor of the second 

degree; or

(2) the amount involved was less than $50 the offense 

constitutes a misdemeanor of the third degree. 

18 Pa.C.S. § 3903. The statute further states that “[w]hen the value of 

property cannot be satisfactorily ascertained pursuant to the standards set 

forth in . . . this subsection[,] its value shall be deemed to be an amount less 
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than $50.” 18 Pa.C.S. § 3903(c)(3). In such a case, the offense would 

constitute a third-degree misdemeanor.

Appellant argues that since the jury did not find the value of the stolen 

items on the verdict slip or otherwise, the amount should be deemed to be 

less than $50 and her theft must be graded as a misdemeanor of the third 

degree. See Appellant’s brief at 8-11. Since the trial court sentenced her to 

a felony, she avers that her sentence is illegal and must be vacated. Id. at 

10-11. After review, we are constrained to agree with Appellant. 

Although she does not articulate it as such, Appellant’s challenge 

invokes a legal principle arising from a line of cases beginning with Apprendi 

v. New Jersey, 530 U.S. 466 (2000). There, the United States Supreme 

Court held that “[o]ther than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum 

must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 

490. In the same vein, this Court, citing Apprendi, has stated that “a fact 

that increases the maximum penalty or changes the grade of an offense 

must be submitted to a jury and proven beyond a reasonable doubt.” 

Commonwealth v. Panko, 975 A.2d 1189, 1191 (Pa.Super. 2009)

(emphasis added). One notable carveout to this prohibition is that a judge 

may change the grading of an offense based on facts admitted by a defendant, 

even if they are not determined by the factfinder. See Commonwealth v. 

Johnson, 961 A.2d 877, 881 (Pa.Super. 2008); see also Cunningham v. 
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California, 549 U.S. 270, 283 (2007) (stating that “[o]ur precedents make 

clear . . . that the statutory maximum for Apprendi purposes is the maximum 

sentence a judge may impose solely on the basis of the facts reflected in the 

jury verdict or admitted by the defendant” (cleaned up)). 

In Johnson, the defendant was convicted by a jury of intimidation of a 

witness, a crime graded as a felony of the first degree if the underlying case 

in which the victim was involved included a charge of murder. See 18 Pa.C.S. 

§ 4952(b)(2). During closing argument, Johnson’s counsel readily conceded 

that the victim was a witness against Johnson’s brother relating to the 

brother’s murder charges. See Johnson, supra at 883. Accordingly, the 

trial court sentenced him on the intimidation count as a felony of the first 

degree. 

Johnson appealed, asserting a challenge under Apprendi because the 

jury did not determine as a matter of fact that the victim was a witness in a 

case involving a murder charge. This Court affirmed, holding that based on 

counsel’s admission, made during trial in the presence of the jury, “there was 

no need for the jury to make a specific factual finding regarding the crime to 

which [the victim] had been a witness.” Id. at 883. Supporting that decision, 

we cited historic precedent from our High Court standing for the proposition 

that “[i]n trials for felony, admissions of fact which the government is bound 

to prove are not permitted unless made at the trial in open court by the 

prisoner or his counsel.” Id. at 882 (citing Commonwealth v. McMurray, 
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47 A. 952, 953 (Pa. 1901) (emphasis added)). As such, we determined that 

counsel’s closing statements at trial constituted an admission of fact sufficient 

to satisfy Apprendi.

Here, the trial court relied upon our holding in Johnson in rejecting 

Appellant’s claim, opining that Appellant’s pre-arrest confession was sufficient 

to supplant any need for the jury to make a factual determination as to value. 

See Opinion of Court, 2/17/23, at 5. The court also highlighted that Trooper 

Kase clearly indicated prior to the confession that the items in question were 

worth approximately $10,000, with the bulk of that being cash, and that the 

value was never disputed by Appellant before or during trial. Id. Accordingly, 

it determined that since the value of the stolen items was over $2,000, 

pursuant to 18 Pa.C.S. § 3903(a.1) the theft was properly graded as a felony 

of the third degree.2

We find Johnson to be factually distinguishable and decline to extend

the Apprendi exception articulated therein to the instant matter. Here, 

Appellant made no admission as to the value of the stolen items in trial in 

open court, either herself or through her attorney.3 Unlike in Johnson, this 

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2

In its brief, the Commonwealth essentially adopts the reasoning of the trial 

court, particularly its reliance on Commonwealth v. Johnson, 961 A.2d 877 

(Pa.Super. 2008). See Commonwealth’s brief at 2-3.

3

Indeed, a close review of the pre-arrest confession reveals that while 

Appellant admitted to taking the firebox, she never conceded or admitted the 

value of the currency or silver coins contained therein. On the contrary, it 

(Footnote Continued Next Page)
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is not a case where Appellant made representations to the jury that obviated 

the need for it to decide some admittedly uncontested fact. Rather, this 

situation entailed an out-of-court confession that Appellant claims she was 

tricked into making based on lies by Trooper Kase, and that the jury should 

reject it. 

Our High Court has made it clear that a pre-trial confession is not 

conclusive of guilt, and therefore does not have the same evidentiary effect

as an admission or stipulation made in open court. More specifically, the Court 

stated as follows: 

[E]ven if a confession has properly been admitted into evidence 

at trial, a finder of fact is still not compelled to believe the matters 

contained in the confession and to automatically return a verdict 

of guilty, since the confession is not decisive of the issue of the 

defendant’s guilt or innocence. See Crane v. Kentucky, 476 

U.S. 683, 689, (1986) (“Confessions, even those that have been 

found to be voluntary, are not conclusive of guilt. And, as with 

any other part of the prosecutor’s case, a confession may be 

shown to be ‘insufficiently corroborated or otherwise unworthy of 

belief.’”). The finder of fact remains the final arbiter of the 

question of the veracity of the matters contained in the confession 

and is wholly free to decide its impact, if any, on the central 

question of the defendant’s guilt or innocence. Commonwealth 

v. Ewell, 319 A.2d 153, 156 (Pa. 1974) (“A defendant’s voluntary 

out-of-court statement is merely another piece of evidence to be 

considered in resolving the ultimate issue of guilt or innocence, 

and jurors can attach as much or as little weight to it as they see 

fit.”). Ultimately, the finder of fact is free to choose to believe all, 

part, or none of the contents of a confession in arriving at its 

verdict. Commonwealth v. Sherwood, 982 A.2d 483, 493 (Pa. 

2009) (“A jury or a trial Court can believe all or a part of or none 

of a defendant’s statements, confessions or testimony.”); 

____________________________________________

was Trooper Kase, not Appellant, that declared the value of these items during 

the interview.
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Commonwealth v. Williams, 176 A.2d 911, 918 (Pa.Super. 

1962) (“A jury is not required to accept a confession as true even 

if it is voluntarily made.” (emphasis original)).

Commonwealth v. Wright, 14 A.3d 798, 816–17 (Pa. 2011) (cleaned up).

Accordingly, to hold that Appellant’s pre-arrest confession constituted 

an admission for Apprendi purposes, despite being made outside of trial and 

the presence of the jury, would run afoul of our Supreme Court’s precedent. 

Such a holding would allow the Commonwealth to use a confession at trial to 

bypass its obligation to prove elements of a crime beyond a reasonable doubt, 

abrogating the jury’s function in weighing the evidentiary value of the 

confession.4 It would also violate the rule articulated by our High Court in 

McMurray, on which Johnson relied, that no admission of fact can be made 

in a felony trial unless done by the defendant or her counsel in trial and in 

open court. McMurray, supra at 953. We cannot countenance such a result. 

Therefore, we find no basis in which to extend Johnson’s holding to this 

matter. 

Rather, this case is analogous to Commonwealth v. Kearns, 907 A.2d 

649 (Pa.Super. 2006), cited by Appellant. There, Kearns was convicted of 

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4 We note that the jury submitted written questions to the trial court before 

rendering it verdict. Significantly, they asked (1) whether the contents of the 

box were relevant, and (2) who owned the items inside the box. See N.T.

Trial, 10/28/22, at 82 (Court Exhibit 1). As such, despite finding Appellant

guilty, it is not certain that the jury believed every aspect of the confession or 

that the Commonwealth proved the value of the contents beyond a reasonable 

doubt.
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involuntary manslaughter, among other crimes. Id. at 651. When he was 

sentenced, the trial court graded that offense as a felony of the second degree 

pursuant to 18 Pa.C.S. § 2504(b) because the evidence demonstrated that 

the victim was under twelve years of age and in the care of Kearns at the time 

the fatal injuries were inflicted. Id. During trial, Kearns never contested that 

the victim was only two years old at the time of death. Id. at 658. Further, 

there was no place on the verdict slip to reflect any finding as to the victim’s 

age. Id. Kearns appealed, arguing that he should be resentenced to a lower 

grading of involuntary manslaughter under Apprendi since the age of the 

victim was never determined as a matter of fact. Id. at 652.

This Court reversed, vacating Kearns’s sentence. After discussing the 

law under Apprendi and its progeny, we concluded that Kearns could not be 

sentenced to a felony of the third degree, as the relevant factual 

determinations were neither admitted by the defendant nor found by a jury 

beyond reasonable doubt. Id. at 655. We so held despite argument from the 

Commonwealth that there was overwhelming evidence that the victim was 

two years old, and that the victim’s age was not contested by Kearns at trial. 

In rejecting those arguments, we stated as follows:

No matter the volume of evidence presented, nor the 

quality of the evidence, or even a lack of contrary evidence, 

the production of evidence cannot stand as a proxy for a 

specific finding by the factfinder. If the preceding were not 

true, then irrespective of the jury’s verdict an acquittal could be 

set aside if a reviewing court concluded that the premise of guilt 

had been conclusively established. Indeed, there would be no 

point in proceeding to jury deliberation in some cases. If the court 
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concluded at the close of evidence that the defendant’s guilt had 

been “conclusively proven,” the court would be entitled to enter a 

guilty verdict directly. Of course, this is not the law, nor could it 

be if we are to preserve the constitutional right to trial by jury. 

Moreover, it is axiomatic that the trier of fact, while passing upon 

the credibility of witnesses and the weight of the proof, is free to 

believe all, part, or none of the evidence. This principle of law 

relegates the factfinding process to the jury, even where 

the ultimate finding seemingly flies in the face of the 

uncontradicted evidence.

Id. at 658 (cleaned up and emphases added).

The matter sub judice is materially similar to Kearns. The jury never 

determined as a matter of fact the value of the items taken. Further, the trial 

court did not instruct the jury that it must determine a certain value to find 

Appellant guilty. Without this determination, there was no fact with which to 

increase the grading of Appellant’s theft by unlawful taking conviction. 

The only difference between this case and Kearns is that the 

Commonwealth here entered into evidence Appellant’s pre-arrest confession, 

which included statements by the trooper, not Appellant, as to the value of 

the items stolen. We are unconvinced that this distinction is pertinent for the 

reasons discussed above. The confession was evidence, perhaps 

overwhelming evidence, that a theft was committed. However, no matter how 

persuasive it was, it cannot be used to impute an in-court admission

concerning the value of the stolen items to Appellant when neither she nor 

her attorney made one. Kearns, supra at 658. This is especially so because 

the confession was “not decisive of the issue of [her] guilt or innocence.” 

Wright, supra at 816. 
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Since the jury never made a finding as to the value of the property 

taken, Appellant’s sentence for theft by unlawful taking must be graded at its 

lowest level, a misdemeanor of the third degree. 

Judgment of sentence vacated. Remanded for proceedings consistent 

with this opinion. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/24/2023