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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. ROBERT J. KEARNS Appellee No. 1682 EDA 2013

Appeal from the Judgment of Sentence June 4 , 2013 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP

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- CR

- 0000829

- 2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J. MEMORANDUM BY OTT, J.: FILED NOVEMBER 13, 2015 The Commonwealth appeals the June 4, 2013, judgment of sentence imposed after a jury convicted Robert J. Kearns and his co

- defendant, Patrick J. McLaine, 1 of theft by failure to make required dispos ition of funds received. 2 On appeal, the Commonwealth argues the trial court erred in grading Kearns’ conviction as a misdemeanor of the third degree because

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__________________________________ 1 The Commonwealth has filed an appeal with respect to McLaine at Docket No. 1685 EDA 2013. Kearns and McLaine have also filed cross

- appeals at Docket Nos. 2480 EDA 2013 and 2600 EDA 2013, respectively. On April 2, 2015, the Commonwealth filed an applica tion 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.J

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the co

- defendants admitted the value of the funds at issue was in excess of $2,000.00. Based on the following, we affirm. The facts and procedural history are as follows. 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, Pennsylvan ia Power and Light (“PPL”). 3 Kearns and McLaine drafted the contract and determined the total cost to do all work necessary for Bethlehem Township to purchase the street lights from PPL. The 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 considere d 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

com mission of $50,060.00.

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__________________________________ 3 The p urpose was to save the township money by accessing a lower utility rate for municipal

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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 acco unt in the name of MEM, which Kearns and McLaine jointly controlled. 4 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 am ount 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 checks were signed by both defendants. At trial, Kearns and McLaine testified t hese 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 muni cipalities. 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

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__________________________________ 4 With respect to the contract, there was no escrow requirement that the Bethlehem Townships funds be held separately from MEM’s other accounts. See N.T., 1/10/2013, at 162 (“The evidence reveals that the Commonwealth admits there was no escrow requirement.”).J

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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 i n 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 the matter. On January 26, 2012, the grand jury returned a presentment, recommending the arrest of Kearns and McLaine on the charges of theft by failure to make required disposition of funds receive d, misapplication of entrusted property, and criminal conspiracy. A criminal complaint was then filed on February 16, 2012. As noted above, the two men were tried together. The joint 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

- d egree felonyJ

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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.
T he trial court agreed and on May 31, 2013, it 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 misdem eanor, 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 $832,460.00. The Commonwealth filed this appeal on June 7, 2013. 5 Subsequently, on June 13, 2013, Kearn s and McLaine filed 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 no t changed.

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__________________________________ 5 The court did not order the Commonwealth to file a concise statement of errors complained of on appeal under Pa.R.A.P. 1925(b). On June 14, 2013, the trial court issued an opinion under Pa.R.A.P. 1925(a).J

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In its sole issue, the Commonwealth complains the trial court erred in grading Kearns’ conviction on the charge of theft by failure to make required disposition of funds received as a misdemeanor of the third degree, and concluding that “the f ailure to submit a special interrogatory to the jury to determine the amount of the alleged theft at issue precluded the court from sentencing” Kearns for his convictions graded as third

- degree felonies. Commonwealth’s Brief at 15. Specifically, the Comm onwealth argues “when a party defendant admits a fact, Apprendi [, supra ,] does not require a jury determination.” Id. at 16. Moreover, the Commonwealth contends that with respect to a theft crime, “the value of stolen items must only be submitted to a ju ry when there exists a factual dispute for the jury to determine.” Id. , citing Commonwealth v. Schamberger , 788 A.2d 408 (Pa. Super. 2001). The Commonwealth maintains the defendants admitted the value of the misappropriated funds because they never dispu ted they received a check in the amount of $832,460.00 from Bethlehem Township, deposited it into their jointly controlled bank account, and then made personal disbursements in the form of bonuses. Id. at 19

- 20. Furthermore, it asserts Kearns’ trial coun sel “made numerous references to the value of the money paid to defendants and admitted [the] same” 6 and McLaine’s trial counsel made an admission during his opening statement (“He [Mr. McLaine]

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__________________________________ 6 See Commonwealth’s Brief at 25.J

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doesn’t deny that Bethlehem Township paid some money for the acquisition of the streetlights[.]” 7 ), and offered into evidence two exhibits which acknowledged and admitted receipt of the $832,460.00 payment from Bethlehem Township. Id. at 31. Lastly, the Commonwealth contends the court “erroneously is of the
view that in order for the ‘admission exception’ of Apprendi to be applicable, the defendants must actually admit their guilt and that they committed a crime.” Id. at 33. Additionally, it states the court “fails to understand the distinction between admitting the value of the funds at issue, but denying any criminal culpability.” Id. We begin by noting the grading of an offense implicates the legality of the sentence. See Commonwealth v. Tustin , 888 A.2d 843, 845 (Pa. Super. 2005) (due process constitutional argument was not waived for failure of defendant to raise it with trial court because it involved grading of an offense which implicates the legality of the sentence, a non

- waivable sentencing issue). 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 s ubject to correction. An illegal sentence must be vacated. We can raise and review an illegal sentence sua

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__________________________________ 7 Id. at 31.J

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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. Commonwealth v. Borovichka , 18 A.3d 1242, 1254 n.8 (Pa. Super. 2011) (internal citations and quotation marks omitted).
In Apprendi , the United States Supreme Court held that the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, as applied to the states through the Fourteenth Amendment, require consideration as follows: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the pres cribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. . . . “It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established beyond a reasonable doubt.” Apprendi , 530 U.S. at 490, quoting Jones v. United States , 526 U.S. 227, 252

- 253 (1999)).
In Cunningham v. California , 549 U.S. 270 (2007), the Supreme Court provided the following supplemental explanation regarding the Apprendi holding: “Our 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 . . . . In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makesJ

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essential to the punishment,’ . . . and the judge exceeds his proper authority.” Cunningham , 549 U.S. at 283, quoting Blakely v. Washington , 542 U.S. 296, 303

- 304 (2004) (emphasis added). As mentioned, there is no Sixth Amendment violation where the defendant admitted the fact in question.
See Commonwealth v. Belak , 825 A.2d 1252, 1256 n.10 (Pa. 2003) (concluding no Apprendi r elief due based upon a failure to submit question to jury regarding whether victims were home during burglaries and when the defendant previously stipulated to that fact). Turning to the present matter, the sentence at issue was imposed on Kearns’ convict ion of theft by failure to make required disposition of funds received under Section 3927. 8 Section 3903 sets forth the applicable grading for the theft offenses, in relevant part, as follows: (a.1) Felony of the third degree. –

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__________________________________ 8 Section 3927 defines the theft crime 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(a).J

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Except as provided in subsection (a) or (a.2), theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is an automobile, airplane, motorcycle, motorboat or other motor

- propelled vehicle, or in the case of theft by receivin g stolen property, if the receiver is in the business of buying or selling stolen property.

... (b) Other grades. – Theft not within subsection (a), (a.1) or (a.2), constitutes a misdemeanor of the first degree, except that if the property was not taken f rom the person or by threat, or in breach of fiduciary obligation, and:

... (2) the amount involved was less than $ 50 the offense constitutes a misdemeanor of the third degree. 18 Pa.C.S. § 3903. In granting Kearns’ (and McLaine’s) post

- sentence motions, the trial court found the following:

Here, the Court imposed identical standard range sentences based on upon [ Kearns’ and McLaine’s] presumptive conviction for Theft as a felony of the third degree. Our justification for these sentences, as set forth in the criminal information, was [Kearns’ and McLaine’s] conversion of the $832,460 commencement check issued by Bethlehem Township. During the trial, we directed all of the parties to submit proposed jury instructions. The Commonwealth’s proffer did not include Pa.S.S.C.J.I. 15.3903, and we adopted the Commonwealth’s proposed verdict slip without revision or objection in our charge. The verdict slip itemized the three crimes at issue. The second itemized crime, Misapplication of Entrusted Prop erty (“Misapplication”), included a supplemental interrogatory requiring the jury to determine whether the value of the stolenJ

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property was more than $50 or less than $50 upon a finding of guilt. The first itemized crime, Theft, did not include a similar provision. The jury convicted [Kearns and McLaine] of Theft and acquitted them of Misapplication. Given the amount of money at stake, it is almost certain that, if asked, the jury would have determined that the value of the converted property exceeded $ 2,000, the threshold for a conviction of Theft as a felony of the third degree. We can see no rational basis upon which the jury could have convicted [Kearns and McLaine] of Theft without also finding that the property exceeded this threshold value. Neve rtheless, the Pennsylvania appellate authority is clear: “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 fa ctfinder.” Commonwealth v. Kearns , 907 A.2d 649, 658 (Pa. Super. Ct. 2006).[ 9 ] “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 con clusively established.... Of course, this is not the law, nor could it be if we are to preserve the constitutional right to trial by jury.” Id. We are not at liberty to disregard this unambiguous declaration from our Superior Court. In the absence of a specific jury finding, we are obligated to re

- sentence [Kearns and McLaine] under the default property value of “less than $50.” Commonwealth v. Dodge , 599 A.2d 668 (Pa. Super Ct. 1991). Our research discloses two recognized exceptions to this rule: st ipulations of fact, Commonwealth v. Panko , 975 A.2d 1189 (Pa. Super. Ct. 2009), and party admissions. Commonwealth v. Johnson , 961 A.2d 877 (Pa. Super. Ct. 2008). However, neither exception is applicable in this case. It is undisputed that, while [Kearns and McLaine] did not contest the

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__________________________________ 9 The defendant in Kearns , supra , is not the same defendant in the present matter, and there is no indication from the record of any relation.J

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face value of the commencement check, they did not stipulate to it or admit to it at any point during the trial. Order, 5/31/2013, at 6

- 8. In its Rule 1925(a) opinion, the court further opined: In the accompanying Statement of Reasons, we acknowledged that the jury almost certainly would have determined that the value of the converted property exceeded $2,000, the threshold for a felony Theft conviction. Nevertheless, we concluded that the clear appellate guideline required us to re

- sentence [ Kearns and McLaine] according to the default property value of “less than $50.” See Commonwealth v. Kearns , 907 A.2d 649 (Pa. Super. Ct. 2006); Commonwealth v. Dodge , 599 A.2d 668 (Pa. Super. Ct. 1991). The Commonwealth has taken exception to our conclusion. On June 4, 2013, the Commonwealth filed a Motion to Preserve Issues for Appeal. Therein, the Commonwealth maintains that we erred in not concluding that [Kearns’ and McLaine’s] acknowledgment that they received the $832 ,460 commencement check from Bethlehem Township and deposited it into their corporate account was tantamount to a concession that they had also converted this sum. According to the Commonwealth, this “admission” obviated the need for the jury to determine [] the value of the converted property. We submit that our Order and Statement of Reasons is both correctly decided and sufficiently comprehensive for appellate review. Nevertheless, we will briefly address the assertions raised by the Commonwealth. W e respectively submit that they misapprehend the question presented. [Kearns and McLaine] vigorously protested their innocence at every stage of this proceeding. They consistently asserted this case is a civil matter for breach of contract rather than a criminal matter for conversion of public property. At the preliminary hearing stage, we heard and overruled [Kearns’ and McLaine’s] motion to dismiss the case on this ground. We concluded, inter alia , that the totality of the circumstances supported a prima facie finding of criminal intent to defraud.J

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- At the trial stage, Attorney Paul Walker argued on behalf of Mr. McLaine that Pennsylvania Power & Light had used the threat of criminal prosecution to leverage its hardball negotiation strategy with MEM. Attorney Walker used the phrase “a different courtroom, a different day, different lawyers,” during his opening and closing arguments to convey his position that the case belonged in civil court, not criminal. Attorney James Swetz argued in a simil ar fashion on behalf of Mr. Kearns. Finally, at the post

- trial stage, both [d]efendants filed motions challenging the sufficiency of the evidence to sustain their convictions. Among other things, they contend the Commonwealth’s failure to establish the commencement check had to be held in escrow is a ground for acquittal. Accordingly, we submit that, far from conceding the value of the property giving rise to their convictions, [Kearns and McLaine] have steadfastly denied converting any property what[s o]ever. As such, we submit that the exception for party admissions espoused by the Commonwealth is inapplicable to this case. Trial Court Opinion, 6/14/2013, at 2

- 4 (record citation omitted). We agree with the court’s finding. As indicated above, the co urt relies on Kearns , supra , to support its conclusion. In that case , the defendant’s convictions stem from the death of his girlfriend’s nearly three year

- old daughter. T he grading of the defendant’s crime, involuntary manslaughter, and his sentence wer e increased because the victim was less than twelve years old and under the defendant’s care, custody, or control. 10 There was no dispute at trial

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__________________________________ 10 With respect to involuntary manslaughter, (Footnote Continued Next Page)J

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whether the victim was under age twelve or in the defendant’s control. As such, the age of the victim and th e defendant’s status were uncontested and obviously proven at trial. On appeal, the defendant argued that “sentencing him in excess of five years’ imprisonment on the involuntary manslaughter conviction violated his Fifth Amendment right to trial by jury as set forth in Apprendi .” Kearns , 907 A.2d at 652. The Commonwealth responded, in relevant part, by arguing that “ Apprendi was not violated because ‘the Commonwealth presented uncontradicted testimony at the time of trial that was considered by the jur y that the victim was less than 12 years of age, i.e. two years and that the victim was in the care, custody and/or control of the Appellant.’”
Kearns , 907 A.2d at 658 (citation omitted). A panel of this Court rejected that position, opining: [T]he Commonwealth appears to argue that despite the fact that the jury did not render an answer to a special interrogatory, “the Commonwealth did prove beyond reasonable doubt that [the victim] was two (2) years old at the time of her death at the hands o f [the defendant] and that she was in the care, custody (Footnote Continued)

_______________________ the offense is deemed a misdemeanor of the first degree except where the victim was under 12 years of age and was in the care, custody or control of [the perpetrator] at the time the injuries were inflicted, in which case the offense is graded a felony of the second degree. A misdemeanor of the first degree ca rries a maximum sentence of five years’ imprisonment whereas a felony of the second degree carries a maximum sentence of 10 years’ imprisonment.
Kearns , 907 A.2d at 653.J

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and/or control of [the defendant,] the person who caused her death.” The answer to this argument should be apparent. No matter the volume of evidence presented, nor the quality of the evidence, or e ven 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 conc luded 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 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 c redibility of witnesses and the weight of the proof, is free to believe all, part, or none of the evidence.” Commonwealth v. Watkins , 577 Pa. 194, 843 A.2d 1203, 1211 (Pa. 2003). This principle of law relegates the factfinding process to the jury, even w here the ultimate finding seemingly flies in the face of the uncontradicted evidence

. Kearns , 907 A.2d at 658 (emphasis added; some citations omitted). Additionally, we find Commonwealth v. Johnson , 961 A.2d 877 (Pa. Super. 2008), appeal denied , 968 A.2 d 1280 (Pa. 2009), instructive. In that case, a jury convicted the defendant of intimidation of a witness and specifically found facts, which elevat ed the grading of the offense to a third

degree felony. The trial court then imposed a sentence as though the conviction were graded as a first

- degree felony. The appellant argued that his sentence “was illegal because the jury had not made a specific finding with respect to the facts in support of elevating the grading of the offense to a first degree felony rather than a third degree felony.” Johnson , 961 A.2d at 881 (footnote omitted). Moreover, he contended “that, in order to changeJ

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the grading of the offense, the jury was required to make a finding regarding the level of the underlying crime for which the intimidated witness was due to testify.” Id. A panel of this Court affirmed the judgment of sentence after concluding “ there was no need for the jury to make a specific factual finding regarding the crime to which [the victim] had been a witness” because the appellant had admitted, through his counsel’s closing argument, the facts which changed the grading of the crime to a first

- de gree felony. Id . at 883. 11 The panel pointed to the following evidence:

Our review of the record further reveals that [the a]ppellant’s counsel admitted, during closing argument, to certain relevant facts pertaining to [the victim

- witness] testifying as a witness in relation to the two charges of murder brought against [the a]ppellant’s brother. With regard to [the victim

witness], [the a]ppellant’s counsel stated: “This is a woman who’s testifying against [the appellant’s brother,] in a double homicide. You think word didn’t get back to them that somebody tried to kill [the victim

- witness]? Sure it did.” [The a]ppellant’s counsel further stated: “[The victim

- witness]

- and we admit that [she] testified against [the appellant’s brother]. I mean that’s a matter of record. And that’s

- in large measure that’s what this case is based on.”

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__________________________________ 11 See also Belak , supra (concluding no merit to Apprendi issue based upon failure to submit question to jury regarding whether victims were home during burglaries because the appellant previously stipulated to that fact); Commonwealth v. Panko , 975 A.2d 1189 (Pa. Super. 2009) (determining no Apprendi relief was due based upon failure to s ubmit jury question regarding whether theft occurred during a natural disaster because the appellant had previously stipulated that the governor declared natural disaster occurred).J

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Id. (record citations omitted). Here, a review of the record reveals the following. The defendants were charged with theft by failure to make required disposition of funds received as a third

- degree felony. Both Kearns and McLaine acknowledged they received a commencement check from Bethlehem Township in the amount of $832,460.00 that was deposited into the MEM general checking
account. See i.e. , N.T., 1/9/2013, at 220 (McLaine’s testimony); N.T., 1/10/2013, at 15

- 19 (Kearn’s testimony). Nevertheless, their defense, as the trial court points out, was that the subject matter of the proceedings was civil in nature and not criminal. See N.T., 1/7/2013, at 93

- 94; N.T., 1/10/2013, at 167

- 169. Moreover, Kearns testified about the work completed on behalf of the contract and a subsequent stalemate with the third party, PPL. See i.e. , N.T., 1/10/2013, at 57 (“Q: And then [counsel for Bethlehem Township] asked you the nex t question on line 11. Where ... did the money received from Bethlehem Township go? And what was your answer? A: My answer was, we expended it on improvements, on lawyers, on operational costs, and on fighting PPL, on reimbursing Bethlehem Township for e xpenditures above the cap payment, and any improvements that were made to the system, and to pay for the general operating cost of MEM.”). At the conclusion of trial, the court instructed the jury with respect to the theft offense as follows:J

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- The Defendant s have been charged with theft by failure to make the required disposition of funds received. To find the Defendant guilty of that offense, you must find that each of the following three elements has been proven beyond a reasonable doubt: First, that t he Defendant obtained property, in this case the funds of Bethlehem Township. One obtains [property] by bringing about a transfer or a purported transfer of a legal interest in property whether to himself or herself or to another. In this case, the prope rty is money. Secondly, that the Defendant obtained this property upon agreement or subject to a known, legal obligation to make a specified disposition thereof, whether from such property or its proceeds or from his or their own property to be reserved i n an equivalent amount. Third, that the Defendant intentionally dealt with a property obtained as his own and failed to make the required disposition. A person acts intentionally if it is his conscious object to engage in conduct of a particular nature. It is not necessary to identify particular property as belonging to the victim at the time of the failure of the Defendant to make the required disposition. If, after considering all the evidence, you find that the Commonwealth has established beyond a reasonable doubt all the elements that I have stated to you, you should find the Defendant guilty of theft. Otherwise, you must find the Defendant not guilty. N.T., 1/11/2013, at 26

- 28. To compare, the court also instructed the jury on the misapplicatio n of entrusted property as follows:

The Defendants have been charged with misapplication of entrusted property. To find the Defendants guilty of this offense, you must find that each of the following three elements has been proven beyond a reasonable doub t: First, that the defendant disposed of certain property in this case the money of Bethlehem Township.J

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- Secondly, that the property had been entrusted to him as a fiduciary. And, third, that the defendant disposed of the property in a manner that he kne w was unlawful and involved substantial loss to Bethlehem Township, the entity for whose benefit the property was entrusted. After hearing all of the evidence, if you think that the Commonwealth has satisfied each of these elements beyond a reasonable dou bt, you must find the defendant guilty of misapplication of entrusted property as charged. If you find the defendant guilty of misapplication of entrusted property, you should go on to consider whether or not the value of the property was more than $50. Certainly in this case the figures were more than $50, but that is the statutory requirement. If you find that the value of the property was more than $50, your verdict should say so. If you find that the value of the property was $50 or less, your verdi ct should also say so. Id. at 39

- 40. Furthermore, the verdict slip, read, in pertinent part: 1. On the charge of Theft by Failure to Make Required Disposition of Funds , we the jury, impaneled in the above

captioned matter, unanimously find the Defendant , Robert J. Kearns Not Guilty ____

Guilty __ X

_ 2. On the charge of Misapplication of Entrusted Property , we the jury, impaneled in the above

- captioned matter, unanimously find the Defendant, Robert J. Kearns

Not Guilty __ X

_ Guilty __

_ _J

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If you find the Defendant guilty of Misapplication of Entrusted Property , answer question number 2a. If you find the Defendant not guilty of Misapplication of Entrusted Property, go on to question number 3. 2a. On the charge of Misapplication of Entrust ed Property , we the jury find the value of the property:

was more than $50.00. _____

was less than $50.00. _____ Verdict Slip, 1/11/2013, at 1

- 2 (emphasis in original). Contrary to the Commonwealth’s argument, our review of this matter compels us to conclude the trial court did not err in finding that Apprendi was violated and Kearns’ theft offense should have been graded as a third

degree misdemeanor. The evidence estab lishes the following: (1) the defendants were charged with the theft crime as a third

- degree felony; (2) the court did not instruct the jury that they must make a specific finding that Kearns and McLaine committed a theft that exceeded $2,000.00, which

wo uld constitute a third

- degree felony; 12 and (3) the verdict slip did not

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__________________________________ 12 As noted by the trial court, the Commonwealth did not proffer Pennsylva nia Suggested Standard Criminal Jury Instruction 15.3903, which provides, in relevant part: A. Grading Based Upon Value of the Property Taken 1. If you find the defendant guilty of theft on the basis of the instructions I have just given you, then it will be necessary for you to make a further determination regarding the value of the [property]

. (Footnote Continued Next Page)J

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indicate the jury must make a specific finding that Kearns and McLaine committed a theft that exceeded $2,000.00. 13 Moreover, this case is distinguishable from Belak and Panko because the defendants did not stipulate to the theft. Furthermore, unlike Johnson , Kearns (and McLaine) never specifically admitted, via their own testimony or their counsels’ opening and closing arguments, to committing a theft in excess of $2,000. Rather, wh ile counsel, like Kearns and McLaine, may have acknowledged the two defendants received and deposited an $832,460.00 check, counsel did not admit Kearns and McLaine used the check

“ intentionally ... as [their] own and fail[ed] to make the required payment or disposition.” 18 Pa.C.S. § 3927(a). 14 As indicated supra , the defendants’
(Footnote Continued)

_______________________ 2. First, you should consider whether the Common wealth has established beyond a reasonable doubt that the value of the [property] exceeded $2,000. If you find that it has been established, then indicate that on the verdict slip. Pa.SSJI (Crim) § 15.3903(a).

13 It merits mention that with respect to the verdict slip, only one crime, misapplication of entrusted property, included a supplemental interrogatory requiring the jury to determine whether the value of the stolen property was more than $50 or less than $5 0 upon a finding of guilt. The theft crime did not include a similar provision. In acquitting Kearns of misapplication of entrusted property, the jury did not make a finding as to whether the value of the property was in excess of $50.00.

14 For example , in closing arguments, counsel for Kearns stated:

Theft by failure to make required disposition of funds received requires that the Defendant, in this case Mr. Kearns, (Footnote Continued Next Page)J

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defense was no conversion took place because the money was placed in a general business account, commingled with other funds, and that this case concerned a contract dispute betwee n the parties, not a criminal act. As such, the need for a specific finding by the jury regarding the amount of property taken was necessary. We note the Commonwealth contends that Kearns’ and McLaine’s acknowledgment of the deposit of the $832,460.00 com mencement check should equate to a party admission. However, we reiterate that this Court,
in Kearns , supra , rejected a similar argument and determined that “[n]o 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 factfind er .... This principle of law relegates the factfinding process to the jury, even where the ultimate finding seemingly flies in the face of the (Footnote Continued)

_______________________ obtained property. Of course Mr. Kearns obtained property for MEM, not Mr. Kearns. Second, that he obtained this property upon agreement or subject to a known legal obligation to make specified payments from this property, the $832,000. Every dollar bill is fungible. Property that is specifically reserved in an equivalent amount. Tha t’s what I meant by escrow. So you would have to find that the agreement required that this actual $832,000 be used as opposed to any other or that MEM or Mr. Kearns was required to reserve other money to do that by agreement. Doesn’t happen. The escro w was never required. N.T., 1/10/2013, at 163.J

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uncontradicted evidence .” Kearns , 907 A.2d at 658 (emphasis added). Accordingly, absent a specific finding of fa ct made by the jury and reflected in the verdict, we find no merit to the Commonwealth’s argument that the defendants’ acknowledgement of depositing the commencement check was sufficient to satisfy the requirements set forth in Apprendi and its progeny.
B ased on the lack of such evidence, including an admission or stipulation by the defendants and a specific finding by the jury, the court originally imposed an illegal sentence under Apprendi when it graded Kearns’ theft conviction as a third

- degree felony and, therefore, it did not err when it resentenced him to a third

- degree misdemeanor crime. Lastly, we note that in a case the Commonwealth relies on, Commonwealth v. Shamberger , 788 A.2d 408 (Pa. Super. 2001) ( en banc ), appeal denied , 800 A.2d 932 (Pa. 2002), a panel of this Court determined that where a factor “concerns the propriety of the grading of the offense which thereby establishes the maximum penalty, and not an enhancement to the sentence beyond the statutory maximum penalty for the theft offe nses, ... Apprendi does not apply.” Id . at 418 n.11. 15 However, it merits mention that the Shamberger C ourt discussed Apprendi in light of the defendant’s ineffectiveness challenge regarding

__________

__________________________________ 15 This opinion was subsequently reiterated in Commonwealth v. Chambers , 852 A.2d 1197, 1200 (Pa. Super. 2004), appeal denied , 871 A.2d 188 (Pa. 2005).J

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counsel’s decision to stipulate to the grading of a theft offense as a first

degree misdemeanor based on the fact that the thefts were “from the person” of the victims. Id. at 419

- 420. The panel held counsel’s strategy was reasonable because the stipulation that the thefts were from the person prevented the Commonwealt h from proving that the value of the stolen goods exceeded $2,000.00, which would have elevated the grading of the offense to a third

- degree felony. As such, we find statements that suggest the principles of Apprendi are not offended when a court classifi es an additional fact not reflected in the verdict as a “grading factor” constitute dicta and do not govern our consideration of the legality of the sentence imposed in the present matter. See Kearns , 907 A.2d at 655 (“In arguing that the key facts that a lter the grading of the offense are merely sentencing factors, the Commonwealth seemingly overlooks the United States Supreme Court’s stance in Apprendi that labeling facts ‘sentencing factors’ does not control the issue.”). Accordingly , we conclude the Commonwealth’s argument fails, and the trial court properly vacated Kearns’ original sentence and re

- sentenced him to a third

- degree misdemeanor crime. Judgment of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/13/201 5