J-S69015-19

2020 PA Super 139

COMMONWEALTH OF PENNSYLVANIA

v.

FRANK NELLOM, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1669 EDA 2019

Appeal from the Judgment of Sentence Entered June 3, 2019

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

No(s): CP-23-CR-0007367-2018

BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

OPINION BY SHOGAN, J.: FILED JUNE 10, 2020

Frank Nellom (“Appellant”) appeals pro se from the judgment of 

sentence entered in the Delaware County Court of Common Pleas, following 

his jury trial conviction for theft of services.1 After careful review, we affirm 

the conviction, but vacate and remand for resentencing. 

The trial court summarized the facts adduced at trial, as follows: 

On or about September 20 of 2018, [Philadelphia Electric 

Company (“PECO”)] employees Keith Steger and John Senkow with 

the assistance of Darby police officer Thomas Takacs responded to 

520 Keystone Avenue in Darby due to a complaint from PECO’s 

claims department. (N.T. 04/9/19, p. 110). The house’s lights 

were on when Appellant answered the door. (N.T. 04/9/19, p. 

112). Appellant was the only person inside the residence. (N.T. 

04/9/19, p. 112). After gaining access to the meter in the 

basement, Mr. Steger and Mr. Senkow discovered the meter had 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

 18 Pa.C.S. § 3926(a)(1). 
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been altered. (N.T. 04/9/19, p. 113). The meter was a “foreign 

meter” that did not belong to the house. (N.T. 04/9/19, p. 116). 

The meter’s ring was missing, which posed a risk of causing an 

“electrical flash.” (N.T. 04/9/19, p. 116). The dirt on the meter 

indicated that it had been left out of the socket until fairly recently. 

(N.T. 04/9/19, p. 117). In order to safely remove the meter, the

service to the house had to be cut from the outside. (N.T. 04/9/19, 

p. 120). Outside the tap connection that connected power to the 

house was loose, creating an unsafe environment. (N.T. 04/9/19, 

p. 123).

At the same time, Appellant tried to barter with Mr. Senkow 

by offering to pay half of what he owed PECO in return for turning 

the power back on. (N.T. 04/9/19, p. 134). Sometime later after 

his power was shut off, Appellant contacted PECO’s customer 

support to have the power put back on as well. (N.T. 04/9/19, p. 

136). Investigation into the house at 520 Keystone Avenue

determined that while Appellant did not own the house, 

documentation placed him at the address[,] and his business was 

being run out of the property. (N.T. 04/9/19, p. 137).

Analytics indicated that the last date the meter took a 

reading was on May 10, 2017. (N.T. 04/9/19, p. 177). A theft 

calculation conducted by PECO business analysist David Bucholtz 

determined that PECO should have received $2,478 from the 

location had the meter not been tampered with. The total 

calculation amounted to $3,658 including $1,180 for fees 

associated with needing to send out a team to cut the taps. (N.T. 

04/9/19, p. 179).

At trial, Appellant acted as his own counsel [after an 

extensive waiver of counsel colloquy]. The trial court advised 

[Appellant] what acting as his own attorney would entail.

The Court: Okay. Do you understand that errors or 

mistakes are made by you during this trial, by either 

the Commonwealth, the [c]ourt or you, and evidence 

is presented which is improper and you fail to object 

or to make appropriate motions, then your rights with 

respect to these errors and mistakes will be lost to you 

permanently, do you understand that?

[Appellant]: Yes, I understand.
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(N.T. 04/9/19, p. 6).

Trial Court Opinion, 10/17/19, at 2–3 (footnote omitted).

Trial commenced on April 9, 2019, with Alex Amoroso, Esq., as standby 

counsel. On April 10, 2019, the jury found Appellant guilty of one count of 

theft of services. N.T., 4/10/19, at 39. It further found that the value of the 

stolen services exceeded $50. Id. On June 3, 2019, Appellant was sentenced 

on the conviction, graded as a third degree felony, to twenty-one to forty-two 

months of incarceration, followed by three years of probation. The court also 

ordered Appellant to pay $3,659.00 in restitution to PECO. After being 

informed of his appeal rights, including the assistance of counsel on appeal, 

Appellant filed his pro se notice of appeal on June 18, 2019.

2

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2

 Appellant filed another pro se notice of appeal at 1935 EDA 2019, which 

bears the same trial court docket number as the instant appeal. In response 

to A Rule to Show Cause as to why the appeal at 1935 EDA 2019 should not 

be dismissed as duplicative of 1669 EDA 2910, Appellant filed an application 

to consolidate the appeals. On January 8, 2020, this Court ordered:

Appellant’s application to consolidate the appeals at 

Superior Court Docket Nos. 1669 EDA 2019 and 1935 EDA 2019 

is DENIED. The appeal at 1935 EDA 2019 is duplicative of the 

appeal at 1669 EDA 2019.

Because the brief Appellant filed at 1935 EDA 2019 is also 

duplicative of the brief this Court docketed as Appellant’s 

"Supplemental Brief" at 1669 EDA 2019, the appeal at 1935 EDA 

2019 is DISMISSED AS DUPLICATIVE of the appeal at 1669 EDA 

2019.

Appeal at Superior Court Docket No. 1935 EDA 2019 

DISMISSED.
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The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) 

statement and gleaned the questions complained of on appeal from 

Appellant’s pro se Application for Relief filed in this Court on October 10, 

2019.3 The court identified the issues, as follows:

1. The trial court erred by refusing Appellant’s request to 

show jurors his utility bills from when he lived at the 520 Keystone 

Avenue location where the theft was alleged to have taken place, 

and current address bills showing the Commonwealth of 

Pennsylvania through the [Low Income Home Energy Assistance 

Program (“LIHEAP”)] pays the majority if not all of his electric and 

gas expenses each year as a result of his being declared disabled 

since 2015, which is the last time service was in Appellant’s name 

at the 520 Keystone Avenue address. In order to show jurors 

even if Appellant knew how to place taps in the electrical line two 

stories high started as the evidence creating the theft, would not 

risk his life doing so to save his State money. Although, having 

grown up at the Union League of Philadelphia as a teenager very 

fond of his state.

2. The trial court erred by after rejecting the over $2,000 

evidence needed to prove the third degree felony charged, 

thereby, required to deem the value less than $50.00 as 

mandated by 18 Pa. C.S.A. § 3903.(c)(3). “When the value of 

property cannot be satisfactory ascertained pursuant to the 

standards set forth in paragraphs (1) and (2) of this subsection

its value shall be deemed to be an amount less than $50.” No 

authority authorized jurors to be instructed to guess at over or 

under $50. Since [neither] would prove the over $2,000 amount 

to establish the third felony charged, and sentenced imposed 

upon.

3. The trial court erred by failing to instruct jurors that 

according to 18 Pa.C.S.A. §[3926](d)(1), because the owner of 

____________________________________________

Order, 1/8/20, at unnumbered 1.

3

 We question the trial court’s reliance on this Application for Relief rather 

than addressing the issues as outlined in Appellant’s Pro Se Motion for 

Reconsideration filed in the trial court on June 7, 2019. 
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the property has legal possession and access “may be reasonably 

inferred to have acted to avoid or tamper with the public utility 

meter or measuring device with the intent to obtain the public 

utility service without making full compensation thereof.

4. Evidence was insufficient to support the Verdict Slip 

finding that Appellant committed theft of Service from on or about 

May 10, 2017 to on or about September 20, 2018.

Trial Court Opinion, 10/17/19, at 1–2 (verbatim).

The trial court determined that Appellant’s arguments were meritless. 

Specifically, the trial court concluded that: 1) it was Appellant’s 

responsibility, and not the court’s, to introduce his billing records into 

evidence; 2) the record did not reflect that the trial court rejected evidence 

of the value of the stolen services; additionally, it was within the trial court’s 

province to instruct the jury; 3) Appellant waived any challenge to the jury 

instruction; and 4) the trial evidence was more than sufficient to support the 

guilty verdict. Trial Court Opinion, 10/17/19, at 3–6.

Appellant re-framed the issues in his appellate brief, which we rephrase 

for sake of clarity: 

I. Was the evidence sufficient to demonstrate that: 1) there 

were unauthorized taps on the outside electric line to the 

property; and 2) the electric line to the property had been 

previously cut or disconnected?

II. Did the trial court err by refusing to allow Appellant to 

introduce evidence of the PECO billing history for the subject 

property?

III. Did the trial court err by refusing to allow Appellant to 

introduce evidence that his PECO bills were paid through his 

participation in the LIHEAP assistance program?
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IV. Was the verdict slip deficient because it did not require the 

jury to make a specific finding as to the value of the stolen 

services, resulting in an illegal sentence? 

V. Was the evidence sufficient to demonstrate that Appellant 

lived at the subject property? 

Appellant’s Brief at 3.

Appellant’s first and fifth issues allege that the evidence was insufficient 

to support a theft of services conviction. We review Appellant’s challenge 

under the following precepts: 

A challenge to the sufficiency of the evidence is a question of 

law, subject to plenary review. When reviewing a sufficiency 

of the evidence claim, the appellate court must review all of 

the evidence and all reasonable inferences drawn therefrom in 

the light most favorable to the Commonwealth, as the verdict 

winner. Evidence will be deemed to support the verdict when 

it establishes each element of the crime charged and the 

commission thereof by the accused, beyond a reasonable 

doubt. The Commonwealth need not preclude every possibility 

of innocence or establish the defendant’s guilt to a 

mathematical certainty. Finally, the trier of fact while passing 

upon the credibility of witnesses and the weight of the evidence 

produced, is free to believe all, part or none of the evidence.

Commonwealth v. Levy, 83 A.3d 457, 461 (Pa. Super. 2013) (quoting 

Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005)).

Section 3926 of the Crimes Code defines the offense of theft of services, 

as follows:

(a) Acquisition of services.--

(1) A person is guilty of theft if he intentionally obtains services 

for himself or for another which he knows are available only for 

compensation, by deception or threat, by altering or tampering 

with the public utility meter or measuring device by which such 

services are delivered or by causing or permitting such altering or 
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tampering, by making or maintaining any unauthorized 

connection, whether physically, electrically or inductively, to a 

distribution or transmission line, by attaching or maintaining the 

attachment of any unauthorized device to any cable, wire or other 

component of an electric, telephone or cable television system or 

to a television receiving set connected to a cable television 

system, by making or maintaining any unauthorized modification 

or alteration to any device installed by a cable television system, 

or by false token or other trick or artifice to avoid payment for the 

service.

18 Pa.C.S. § 3926(a)(1).

In support of his first insufficiency claim, Appellant contends that there 

was no evidence that “the electric line to the property was cut or disconnected 

by PECO prior to the date the PECO investigator stated that he cut the line.” 

Appellant’s Brief at 7. While Appellant is correct in this assertion, he fails to 

explain its relevance. Appellant is claiming that statements in the affidavit of 

probable cause that PECO investigators observed “unauthorized taps at the 

rear of the property” . . . “unauthorized taps creating theft,” combined with 

photographs of the outside taps admitted into evidence suggested to the jury 

that he had tampered with the outside line and speculates that this 

information could have influenced the jury’s guilty verdict. Id. There is no 

support for this position. First, any evidence that PECO had previously 

disconnected or cut the line would not have any impact on Appellant’s 

involvement in the theft of services. Second, even if the language of the 

affidavit of probable cause could conceivably be interpreted as indicating that 

Appellant was responsible for interference with the outside line or taps, the 

jury was not privy to the information included in the affidavit. Third, there 
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was no evidence presented at trial that the outside taps had been cut by either 

PECO or Appellant prior to September 20, 2018. 

Testimony concerning the taps was elicited from Keith Steger, the PECO 

revenue protection foreman, and was limited to statements concerning their 

appearance, i.e., they “didn’t look safe,” were “sub-PECO standards,” and the 

“connections were loose.” N.T., 4/9/19, at 121–123. He also stated that “an 

electrician can make the taps.” Id. at 123. When Mr. Steger described the 

images of the outside line and taps by reference to the photographic evidence, 

Appellant did not object to the admission of the photographs. Id. at 124. As 

the Commonwealth did not present the jury with any evidence suggesting that 

Appellant tampered with the taps or cut the outside line, its guilty verdict could 

not have been compromised by the admission of photographs. Simply put, 

the Commonwealth was not seeking to prove that Appellant committed theft 

of services traceable to his interference with the outside line; rather, its 

prosecution of Appellant was premised on the illegal electrical service he 

received via the replacement of a PECO meter with a foreign meter. 

Statements included in the affidavit of probable cause that were not before 

the jury and photos of the outside of the property, therefore, did not implicate 

the question the sufficiency of the evidence supporting Appellant’s conviction 

for theft of services. Appellant’s argument to the contrary is meritless.

Appellant’s second sufficiency challenge concerns the evidence that 

Appellant lived at the subject property. Appellant claims that 18 Pa.C.S. 
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§ 3926(d)(1) creates an inference that the property owner is responsible for 

any activity resulting in the theft of services, and because he was not the 

owner, the evidence must demonstrate that Appellant lived at the subject 

property. 

Initially, we disagree with Appellant’s legal premise that 18 Pa.C.S. 

§ 3926(d)(1) somehow imposes a stronger inference of wrongdoing upon the 

property owner. Rather, the subsection provides:

(d) Inferences.—

(1) Any person having possession of or access to the location 

of a public utility meter or service measuring device which has been 

avoided or tampered with so as to inhibit or prevent the accurate 

measurement of utility service and who enjoys the use of or 

receives the benefit from the public utility service intended to be 

metered or measured by the public utility meter or measuring 

device so avoided or tampered with may be reasonably inferred to 

have acted to avoid or tamper with the public utility meter or 

measuring device with the intent to obtain the public utility service 

without making full compensation therefor. 

18 Pa.C.S. § 3926(d)(1). There is no reference in the statutory language to 

the property owner; rather the inference applies to “[a]ny person having 

possession of or access to the location of a public utility meter or service 

measuring device.” Id. (emphasis added). 

Additionally, this Court has described the proof needed to permit an 

inference of use of non-metered utility service. In Commonwealth v. Deer, 

615 A.2d 386 (Pa. Super. 1992), we concluded:

[T]he statute does recognize that more than one person may be 

the beneficiary of service. The statute simply allows an inference 

where such a beneficiary has access to a meter which was 
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tampered with to prevent accurate measurement. The fact that 

others may also benefit will allow this inference to apply equally 

to them. It remains, however, the Commonwealth’s responsibility 

after application of the inference to establish beyond a reasonable 

doubt that the defendant committed the theft. The absence of 

proof may render a conviction unconstitutional, but the inference 

itself, sanctioned by statute, is not.

An inference has been defined as no more than a logical tool 

enabling the trier of fact to proceed from one fact to another.

Where the inferred fact is more likely than not to flow from the 

proved fact on which it is made to depend the evidentiary 

inference will pass constitutional scrutiny. We find that the 

inference challenged in the present case is able to meet the more 

likely than not standard. Where an individual has access to or 

possession of a measuring device, and the device has been shown 

to have been tampered with so as to inhibit or prevent the 

accurate measurement of utility service, and where this same 

individual enjoys the use or receives the benefit of the utility 

service which has been interrupted, then it is more likely than not

that this individual tampered with the measuring device with the 

intent of obtaining service without making full compensation for 

it.

Id. at 387–388 (internal citations and quotations omitted). See also

Commonwealth v. Gallagher, 582 A.2d 1349, 1351 (Pa. Super. 1990) 

(discussing statutory requirements, and evidence needed, to permit an 

inference that an appellant unlawfully acquired services). Thus, the proper 

inquiry here is whether the Commonwealth presented sufficient evidence that 

Appellant more likely than not had access to the tampered electric meter and 

derived a benefit from the pilfered utility service. 

The trial court summarized the evidence supporting Appellant’s 

conviction of theft of services as follows:

Appellant was the only person inside the residence when PECO

employees went to the residence. Business records indicated that
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Appellant ran a business out of the residence. Appellant 

acknowledged his debt when he tried to make a deal with 

Mr. Senkow, offering to pay half of the money that he owed in 

order to have the power reconnected. 

Trial Court Opinion, 10/17/19, at 6 (record references omitted). In addition 

to these findings, the record demonstrates that Commonwealth witness 

John Senkow, a PECO senior security specialist, reviewed the records 

pertaining to the subject property and uncovered an internet White Pages 

listing for Appellant at 520 Keystone Ave. N.T., 4/9/19, at 157. Mr. Senkow 

also referred to documentation reflecting that Appellant called PECO on 

September 20, 2018, the day when service was cut, to request that the 

electricity be connected. Id. at 159. 

Moreover, and most significantly, Officer Takacs, who accompanied the 

PECO representatives to the subject property on September 20, 2018, offered 

compelling testimony concerning Appellant’s connection to 520 Keystone Ave. 

Officer Takacs revealed that when he talked to Appellant in conjunction with 

the PECO investigation, Appellant admitted that “he lived on the property for

years.” N.T., 4/9/19, at 170. Officer Takacs also recounted, in his capacity 

as a police officer, that he responded to two previous calls at that address, 

one in December of 2015 and one in April of 2018. On both occasions, 

Appellant was present at the residence. Id. at 168–170. Appellant did not 

challenge Officer Takac’s statement concerning Appellant’s residency on 

cross-examination. Id. at 170–172. 
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This quantum of evidence supports a sustainable inference that 

Appellant had access to the foreign electric meter on the subject property and 

benefitted from the utility service acquired through the device. Appellant, 

therefore, is not entitled to relief on this insufficiency claim.

Appellant’s second and third issues concern the billing history of the 

subject property and alleged payments made to PECO on Appellant’s behalf 

by the LIHEAP assistance program. Appellant addresses these issues 

together, generally contending that the trial court erred when it refused to 

allow Appellant to introduce evidence that LIHEAP was paying Appellant’s 

PECO bills. Appellant avers that this evidence would demonstrate that he did 

not need to steal electricity. Appellant’s Brief at 9.

Our review of this claim is hampered because Appellant does not provide 

a record reference to the trial court’s denial of his request to introduce this 

evidence or the trial judge’s ruling on his request. An appellant must identify 

where in the record an issue was preserved or this Court may deem it waived. 

See Pa.R.A.P. 2117(c); 2119(e). For this reason, we conclude that Appellant 

has waived the issue pertaining to admission of his PECO bills. See 

Commonwealth v. Cole, 167 A.3d 49, 64 (Pa. Super. 2017) (finding waiver 

when the appellant failed to identify where in the record an issue was 

preserved).

Even if not waived, Appellant’s claim is not supported by the record. 

During voir dire, Appellant explained to the trial court that he wanted to 
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ascertain if the jurors were acquainted with the LIHEAP program because his 

“whole defense was that [LIHEAP] paid for [his] utilities.” N.T., 4/9/19, at 38. 

The trial court then instructed Appellant: “Well, you can -- if that’s part of 

your defense, you can explain it to them.” Id. This statement cannot be 

construed in any fashion as a limitation on Appellant’s right to introduce 

evidence of LIHEAP’s payment assistance. The record also discloses that 

Appellant cross-examined Mr. Senkow about Appellant’s participation in the 

LIHEAP program. N.T., 4/9/19, at 153–156. At no time during this exchange 

did the trial court issue a ruling on the admissibility of Appellant’s bills. Id. 

Another reference to Appellant’s intent to introduce his bills into 

evidence occurred after the Commonwealth rested its case. At this point, 

Appellant informed the court that he “would like to testify tomorrow so I can 

bring in my [PECO] bills,” see N.T., 4/9/19, at 186, and the court 

acknowledged this representation. Id. However, on the following day, 

Appellant opted not to testify and rested his case without presenting any 

evidence. N.T., 4/10/19, at 3. Again, no trial court action precluded the 

admission of the LIHEAP evidence.4 Accordingly, Appellant’s second and third 

issues are meritless.

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4

 If, in fact, the trial court informed Appellant that the only admissible billing 

evidence in this regard would be LIHEAP payments between May 2017 and 

September 2018, the timeframe of the alleged theft of services, that ruling 

would be upheld. The fact that sometime before May of 2017 or after 

September 2018 Appellant received LIHEAP assistance for his utility bills 

would not be relevant to the prosecution of the instant crime. 
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Appellant’s final issue has two components. Appellant first contends 

that the verdict slip was incomplete because it did not require the jury to find 

that the value of the stolen services exceeded $2,000.00. He then avers that 

this deficiency resulted in an illegal sentence. Appellant’s Brief at 10. 

Appellant did not object to the verdict slip at trial, see N.T., 4/10/19, at 

3, therefore an appellate challenge to its language is waived. See 

Commonwealth v. Matty, 619 A.2d 1383, 1387 (Pa. Super. 1993) (holding 

that the defendant’s “failure to contemporaneously object to the jury 

instructions or the verdict slip . . . operates as a waiver.”). However, Appellant 

is also asserting that the jury’s verdict resulted in an improper grading of the 

level of the theft of services conviction. Appellant argues that the 

Commonwealth failed to prove the value of stolen services and the jury’s 

verdict determined only that the amount exceeded fifty dollars. He, therefore, 

contends that his conviction should have been graded as a summary offense.5 

Appellant’s Brief at 10.

“A claim that the court improperly graded an offense for sentencing 

purposes implicates the legality of a sentence.” Commonwealth v. 

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5

 At his sentencing hearing, Appellant urged that the offense should have 

been graded as a misdemeanor of the second degree. N.T. (Sentencing), 

6/3/19, at 5–7. 
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Mendozajr, 71 A.3d 1023, 1027 (Pa. Super. 2013) (citation omitted).

6

 While 

we reject Appellant’s contention that his conviction should be graded as a 

summary offense, see n.8, infra, we nonetheless conclude that sentence

imposed upon the count of theft of services graded as a third degree felony 

violates the constitutional principles set forth in Apprendi v. New Jersey, 

530 U.S. 466 (2000).7

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6

 There exists contrary jurisprudence on whether the grading of an offense 

implicates the legality of a sentence. In Commonwealth v. Spruill, 80 A.3d 

453 (Pa. 2013), the Pennsylvania Supreme Court addressed “the proper scope 

of the illegal sentence doctrine which allows for review of otherwise defaulted 

claims.” Id. at 454 (quotation omitted). After review, the high Court 

determined that the issue on appeal, i.e., whether the trial court erred by 

convicting the appellee of aggravated assault graded as a second-degree 

felony where the Commonwealth charged her with aggravated assault as a 

first-degree felony, concerned the underlying conviction and did not implicate 

the legality of her sentence. Id. at 461. 

 Herein, Appellant claims the sentence on his theft of services conviction 

was illegal because the court improperly graded that offense as a third degree 

felony in contravention of the jury’s express finding that the value of the 

services stolen “exceeded fifty dollars.” N.T., 4/10/19, at 39; Verdict Slip, 

4/10/19, at 1. Appellant pursued a position that the offense should have been 

graded as a misdemeanor of the second degree, and not as a third degree 

felony at his sentencing. N.T. (Sentencing), 6/3/19, at 5–7. Because 

Appellant is complaining about the sentence and is not seeking an arrest of 

judgment for this conviction, Spruill is inapposite.

7

 In Apprendi, the United States Supreme Court held: “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.” 530 U.S. at 490. See also Commonwealth v. 

Panko, 975 A.2d 1189, 1191 (Pa. Super. 2009) (citing Apprendi and noting 

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.”).
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18 Pa.C.S. § 3926(c) governs grading of theft of services offenses and 

reads in relevant part, as follows:

(c) Grading.--

(1) An offense under this section constitutes a summary 

offense when the value of the services obtained or diverted 

is less than $50.

(2) When the value of the services obtained or diverted is 

$50 or more, the grading of the offense shall be as 

established in section 3903 (relating to grading of theft 

offenses).

18 Pa.C.S. §3926(c)(1)(2).

18 Pa.C.S. § 3903, in turn, provides that theft offenses are graded, in 

relevant part, as follows:

(a.1) Felony of the third degree. -- [T]heft constitutes a felony 

of the third degree if the amount involved exceeds $2,000 . . . . 

* * *

(b) Other grades.--Theft . . . 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(a.1), (b)(1)(2). 

While the Commonwealth originally charged Appellant with theft of 

services graded as a third degree felony and presented uncontradicted 
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evidence that the total value of services obtained was $3,658.00,

8

the only 

question presented for a determination by the jury was whether the “value of 

the services obtained exceeded fifty dollars,” to which the jury answered 

“yes.” N.T., 4/10/19, at 39; Verdict Slip, 4/10/19, at 1. The effect of this 

verdict merely established that the offense was greater than a summary 

offense. See 18 Pa.C.S. § 3926(c)(1) (theft of services is a summary offense 

if the value of the services taken is fifty dollars or less). However, the trial 

court, without objection by the Commonwealth, failed to present the jury with 

the essential questions necessary to elevate the grade of the offense from a 

misdemeanor of the second degree to either a misdemeanor of the first 

degree, or a felony of the third degree — namely, (1) whether the amount 

involved was between $200.00 and $2,000.00, or (2) whether the amount 

involved exceeded $2,000.00, respectively. 18 Pa.C.S. § 3903(b), (a.1). 

Therefore, in light of Apprendi, we are obligated to conclude that the verdict 

on this count only authorized the trial court to sentence Appellant for theft of 

____________________________________________

8

 Testimony from PECO business analysist David Bucholtz determined that 

PECO should have received $2,478.00 from the location had the meter not 

been replaced by the unauthorized foreign meter. The total calculation 

amounted to $3,658.00, including $1,180.00 for the expense incurred when 

PECO cut the taps for safety reasons. N.T. 4/9/19, at 179. Based upon this 

undisputed computation, Appellant is incorrect when he states that the theft 

of services conviction should have been graded as a summary offense. 
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services graded as a misdemeanor of the second degree, the maximum 

sentence for which is two years. See 18 Pa.C.S. § 1104(2).9

For the foregoing reasons, we affirm the trial court’s order in part and 

remand in part for resentencing, with Appellant’s offense graded as a second 

degree misdemeanor rather than a third degree felony.

Judgment of sentence vacated. Case remanded for resentencing 

consistent with this Opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2020

____________________________________________

9

 The two cases cited by the Commonwealth, Commonwealth v. Hanes, 

522 A.2d 622, 626 (Pa. Super. 1987) and Commonwealth v. Reiss, 655 

A.2d 163, 168 (Pa. Super, 1995), to support its position that the 

Commonwealth is not required to establish the precise market value of the 

stolen property for purposes of grading an offense, pre-date Apprendi.