J-A17011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 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-48-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,1of theft by failure to make required disposition 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 

____________________________________________

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 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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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, Pennsylvania 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 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.

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3

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

rate for municipal-owned streetlights.
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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 account 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 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 

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 

____________________________________________

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.”).
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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 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 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 received, 

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-degree felony 
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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. 

The 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 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 

$832,460.00. The Commonwealth filed this appeal on June 7, 2013.5

Subsequently, on June 13, 2013, Kearns 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 not 

changed. 

____________________________________________

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).
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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 failure 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 Commonwealth 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 jury 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 disputed 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 counsel “made numerous references to the value of 

the money paid to defendants and admitted [the] same”6and McLaine’s trial 

counsel made an admission during his opening statement (“He [Mr. McLaine] 

____________________________________________

6 See Commonwealth’s Brief at 25.
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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 subject to correction. An illegal sentence must be 

vacated. We can raise and review an illegal sentence sua 

____________________________________________

7

 Id. at 31.
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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 prescribed 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 makes 
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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 relief 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’ conviction 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).
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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 receiving 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 from 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 Property 

(“Misapplication”), included a supplemental interrogatory 

requiring the jury to determine whether the value of the stolen 
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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. Nevertheless, 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 factfinder.” 

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 conclusively 

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: stipulations 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 

____________________________________________

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.
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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. We 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. 
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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 similar 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[so]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 court 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. The grading of the 

defendant’s crime, involuntary manslaughter, and his sentence were 

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 

____________________________________________

10

 With respect to involuntary manslaughter, 

(Footnote Continued Next Page)
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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 the 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 jury 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 of [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 carries 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.
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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 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 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.” 

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 where 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.2d 1280 (Pa. 2009), instructive. In that 

case, a jury convicted the defendant of intimidation of a witness and 

specifically found facts, which elevated the grading of the offense to a thirddegree 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 change 
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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-degree 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 victimwitness], [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.” 

____________________________________________

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 submit jury question 

regarding whether theft occurred during a natural disaster because the 

appellant had previously stipulated that the governor declared natural 

disaster occurred).
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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 next 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 expenditures 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:
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The Defendants 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 the 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 property 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 in 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 misapplication 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 doubt:

First, that the defendant disposed of certain property in 

this case the money of Bethlehem Township.
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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 knew 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 doubt, 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 verdict 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 abovecaptioned 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 ____
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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 Entrusted 

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 thirddegree misdemeanor. The evidence establishes 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 

would constitute a third-degree felony;12 and (3) the verdict slip did not 

____________________________________________

12

 As noted by the trial court, the Commonwealth did not proffer 

Pennsylvania 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)
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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, while 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 Commonwealth 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 $50 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)
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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 between 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 commencement 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 factfinder.... 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. That’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 escrow was never 

required.

N.T., 1/10/2013, at 163.
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uncontradicted evidence.” Kearns, 907 A.2d at 658 (emphasis added). 

Accordingly, absent a specific finding of fact 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. 

Based 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 offenses, ... Apprendi does not apply.” Id. at 418 n.11.15 

However, it merits mention that the Shamberger Court 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).
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counsel’s decision to stipulate to the grading of a theft offense as a firstdegree 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 Commonwealth 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 classifies 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 alter 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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2015