J-S27043-22

2024 PA Super 29

COMMONWEALTH OF PENNSYLVANIA

v.

HOZAY ANGELO ROYAL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2429 EDA 2021

Appeal from the Judgment of Sentence Entered July 19, 2021

In the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0004389-2019

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

OPINION BY SULLIVAN, J.: FILED FEBRUARY 20, 2024

Hozay Angelo Royal (“Royal”) appeals from the judgment of sentence 

following his jury convictions for retail theft.1 We affirm in part, vacate the 

order of restitution, and remand for a limited resentencing.

The trial court summarized the factual and procedural history of this 

case, including Royal’s jury trial, as follows:

the Commonwealth first presented the testimony of Bernard

Bulos, a Central Investigator for Macy’s Department Store [(“the 

store”)] who investigates theft for [the store] across the entire 

country. He stated [] one of his investigative tools is a system 

called TrueVue that is used mainly for inventory control purposes 

so the store can keep track of what items leave the store that 

aren’t paid for. It also is a system . . . used for Asset Protection, 

i.e., to identify individuals that leave the store with merchandise 

that isn’t properly paid for both from an employee standpoint as

well as a customer standpoint. Mr. Bulos explained . . . that every 

time the system reads a tag that walks out of the store, it matches 

it to the sales database to see if it was sold or not. A report is 

received the following morning. He further explained . . . the 

merchandise has a tag, a UPC tag, and within that UPC tag there 

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1 See 18 Pa.C.S.A. § 3929(a).
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is also a unique identifier, an EPC tag,2 which is embedded in RFID, 

a radio frequency identification. 

_____________________

2An EPC is an identification that is specific to just that 

particular item. There is a different EPC for every UPC 

tag. [See Trial Court Opinion, 10/15/21, at 5 

(transcript citations omitted).]

The report that is generated by TrueVue is available the 

following day. The report provides the date, the time, and the 

EPC for each item. It also provides the door in the store the item 

went out of. It further provides a picture, a link, to the actual 

time-stamped video of who is walking out with the item. 

* * * * *

Mr. Bulos testified that he has been using TrueVue since 

2016, and . . . has used it in thousands of investigations for 

identification purposes. He never encountered any problems with 

the system. He explained that to assess its accuracy he always 

double checks it. He stated, “[s]o when we get that information, 

we can then take the UPC and go to our in-house records and run 

it again ourselves to make sure that it was not sold against our 

own sales records. So[,] we’ll always do that.” He has never 

found any inconsistencies in doing this. Further, the witness

explained that he compares what is in the video to the information 

provided for by TrueVue. Because TrueVue provides the product 

image, that image will look identical to what’s in the video if it’s 

visible in someone’s hand.

The Commonwealth then presented Mr. Bulos with Exhibit 

“C-1,” which he testified to as a picture taken on February 19, 

2019, by TrueVue, of [Royal] walking out of the store with a 

comforter in his hand in plain view. The picture also contained 

the manufacturer of the product, PB [C]omforters, and the specific 

brand, Charter Club. It also contained the UPC and the EPC 

numbers and the date and time the merchandise left the store,

and the value of that item. The Commonwealth presented Mr. 

Bulos with additional exhibits “C-2,” “C-3,” “C-4,” “C-5,” which 

depicted in pictures [Royal] leaving the store with various bedding 

and cookware merchandise on the dates February 22, 2019, 
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February 26, 2019, February 28, 2019, and March 2, 2019, 

respectively. 

In response to these TrueVue reports, Mr. Bulos coordinated 

a “blitz” of the [store] on March 5, 2019. In this “blitz,” the 

witness called his peers in the neighboring area to meet up at [the 

store] to watch the mall doors and specifically, the southeast 

parking doors, and wait and see if [Royal] would come in that day.

[Royal] did in fact come in that day. Mr. Bulos observed [Royal] 

exit the store with a Le Creuset pot in his arms. Having already

confirmed [Royal] had not paid for that item, when [Royal] went 

out of the second set of doors Mr. Bulos stopped him and identified 

himself and told [Royal] he was being stopped for shoplifting. 

[Royal] tried to explain that he was just taking the item out of the 

store to show to his wife in the parking lot. No one identified as 

his wife ever appeared. At this point police were called. 

Trial Court Opinion, 10/15/21, at 5-8 (transcript citations omitted, punctuation 

corrected).

The jury convicted Royal of six counts of retail theft. After trial but prior 

to sentencing, Royal stated he wished to waive the right to counsel and 

proceed pro se. The court conducted a Grazier2 hearing and permitted Royal 

to proceed pro se with stand-by counsel. See N.T., 10/20/20, at 7.

At Royal’s sentencing for these offenses and another crime,3 he 

challenged the weight of the evidence in this case and asserted he could not 

be sentenced for the retail thefts as felonies because the criminal information 

graded his crimes as misdemeanors. See N.T., 7/19/21, at 26-32. The trial 

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2 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

3 See CP-46-CR-5423-18, which was before this Court at J-S27042-22 (filed 

12/12/23).
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court denied Royal’s assertions and imposed an aggregate sentence for this 

docket of three to fourteen years of imprisonment.4

Royal filed a timely post-sentence motion, a later supplement, and an 

untimely notice of appeal, which the trial court later denied.5 Both Royal and 

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

Royal presents the following issues for our review:

[1] Request to remand to the lower court for an evidentiary 

hearing based on after-discovered evidence pursuant to 

Pa.R.Crim.P. 720(C).

[2] Did the trial court err in not addressing [Royal’s] claims of 

ineffective assistance of trial counsel in his post-sentence 

motion when the trial court granted [Royal] to proceed [sic] 

pro se after the convictions where the trial court was 

required to determine if an evidentiary hearing was required 

or if the claims could be resolved on the existing record?

[3] Did the sentencing court err as a matter of law when it 

imposed illegal sentences when the Commonwealth failed to 

aver any prior retail theft convictions in the Bill of 

Information, contrary to precedent of this Court and the 

Supreme Court of Pennsylvania?

[4] Was the sentencing court without jurisdiction to impose a 

restitution order when it did not determine an amount of 

restitution at the time of sentencing?

Royal’s Brief at 4 (issues reordered; capitalization standardized).

6

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4 The sentence in the instant matter is to be served consecutively to that in 

CP-46-CR-5423-18.

5 We will regard this appeal as having been timely filed after the entry of an 

order denying post-trial motions. See Pa.R.A.P. 905(a)(5).

6 For ease of disposition, we have reordered the issues in Royal’s Brief.
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Royal’s first issue requests a remand for an evidentiary hearing based 

on a claim of after-discovered evidence. A claim of after-discovered evidence 

must satisfy a four-prong test; it must show: 

(1) the evidence could not have been obtained before the 

conclusion of the trial by reasonable diligence; (2) the evidence is 

not merely corroborative or cumulative; (3) the evidence will not 

be used solely for purposes of impeachment; and (4) the evidence

is of such a nature and character that a different outcome is likely. 

Commonwealth v. Miller, 172 A.3d 632, 650 (Pa. Super. 2017) (citation 

omitted). The evidence must be “producible and admissible.” 

Commonwealth v. Castro, 93 A.3d 818, 825 (Pa. 2014) (citation omitted). 

Further, “[t]he test is conjunctive; the appellant must show by a 

preponderance of the evidence that each of these factors has been met in 

order for a new trial to be warranted.” Commonwealth v. Foreman, 55 

A.3d 532, 537 (Pa. Super. 2012) (brackets omitted). 

The alleged after-discovered evidence in this case is a variety of 

technical information concerning the operation of the TrueVue software. See 

Royal’s Brief at 12-20. Royal contends this information showed the software 

and/or related hardware was not operating correctly or was defective and, 

therefore, the Commonwealth did not prove the items in question were stolen. 

See id. Royal argues he should receive a new trial based on this information 

which he claims he obtained by researching the manufacturer’s website and 

having conversations with some of the manufacturer’s employees. See id. at 

17-20. The Commonwealth counters that 
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[t]he alleged after-discovered evidence could have been 

discovered by the exercise of reasonable diligence prior to trial. 

[Royal] uncovered the alleged after-discovered evidence by 

talking to the company who makes TrueVue systems. Meaning, 

when he decided to look for information related to the system, he 

easily found it, and it could have been discovered by the exercise 

of reasonable diligence prior to trial.

Commonwealth’s Brief at 8. We agree.

In the context of after-discovered evidence claims, this Court has 

defined the “reasonable diligence” duty of a defendant in the following 

manner:

To obtain a new trial based on after-discovered evidence, the 

petitioner must explain why he could not have produced the 

evidence in question at or before trial by the exercise of 

reasonable diligence. A defendant may unearth information that 

the party with the burden of proof is not required to uncover, so 

long as such diligence in investigation does not exceed what is 

reasonably expected. Thus, a defendant has a duty to bring forth 

any relevant evidence in his behalf. A defendant cannot claim he 

has discovered new evidence simply because he had not been 

expressly told of that evidence. Likewise, a defendant who fails 

to question or investigate an obvious, available source of 

information, cannot later claim evidence from that source 

constitutes newly discovered evidence. 

Commonwealth v. Padillas, 997 A.2d 356, 363–64 (Pa. Super. 2010) 

(internal citations omitted).

Here, the purported evidence was not unavailable at the time of trial. 

Royal knew the Commonwealth would be presenting testimony regarding the 

TrueVue system. There was nothing preventing the defense from doing what 

Royal did after trial, researching the product on the company’s public website 

and contacting the company for information. 
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Royal attempts to evade the after-discovered evidence standard by 

claiming the Commonwealth withheld this technical information in violation of 

Brady v. Maryland, 373 U.S. 83 (1963). See Royal’s Brief at 13-14. 

However, to prove a Brady violation, an appellant must show the 

evidence was suppressed or withheld by the Commonwealth. See 

Commonwealth v. Spotz, 18 A.3d 244, 276 (Pa. 2011). Further, there is 

no Brady violation “when the appellant knew or, with reasonable diligence, 

could have uncovered the evidence in question, or when the evidence was 

available to the defense from non-governmental sources.” Id. (citations 

omitted). As noted above, the evidence in question was available via a public 

website and from contacting the manufacturer. Royal could have obtained it 

at any time. Because Royal could have readily obtained this evidence from 

non-governmental sources, there is no Brady violation. See id. Moreover, 

because Royal has not shown he exercised due diligence in attempting to 

discover this information, he has not met the requirements for a new trial 

based on after-discovered evidence. See Padillas, 997 A.2d at 363–64. 

Royal’s first issue does not merit relief.

Royal next contends trial counsel was ineffective. See Royal’s Brief at 

32-45. This claim is premature. 

Our Supreme Court recently reiterated the well-established principle 

that claims of trial counsel’s ineffectiveness are to be raised in collateral 

proceedings and may not be raised on direct appeal. See Commonwealth 
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v. Bradley, 261 A.3d 381, 391 (Pa. 2021) (stating, “claims of trial counsel's 

ineffectiveness ... are to be presented in a [petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546]”); see also 

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (stating, “claims 

of ineffective assistance of counsel are to be deferred to PCRA review”); 42 

Pa.C.S.A. § 9543(a)(2)(ii) (setting forth ineffective assistance of counsel as 

grounds for collateral relief if pleaded and proven by a preponderance of the 

evidence). Therefore, Royal’s claims of ineffective assistance of trial counsel 

are premature, and we dismiss them without prejudice to his right to raise 

them in a collateral proceeding.7

In his third claim, Royal argues the trial court erred in sentencing him 

for retail theft as a third-degree felony because the criminal information did 

not detail his prior convictions for retail theft. See Royal’s Brief at 21; see 

also Information, 10/1/18, at 1-2 (unnumbered). Royal maintains the 

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7 Royal’s reliance on Commonwealth v. Hudson, 820 A.2d 720 (Pa. Super. 

2003), to support the resolution of an ineffective assistance claim on direct 

appeal is misplaced. See Royal’s Brief at 32-34. In Hudson, the appellant 

had raised ineffective assistance of counsel claims in a post-sentence motion 

and the trial court disposed of them on the merits after holding an 

evidentiary hearing. See Hudson, 820 A.2d at 725-26. Because of this

procedure, we found an exception to the general rule and addressed the 

merits of the appellant’s ineffective assistance claims on direct appeal. See 

id. Here, the trial court properly declined to address the merits of Royal’s 

premature claims. See Trial Court Opinion, 10/15/21, at 19. Thus, Hudson

does not support Royal’s contention his ineffective assistance of counsel claims 

should be addressed on direct appeal.
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Commonwealth did not provide him with adequate notice of the sentence he 

faced. See id. at 21-25. 

18 Pa.C.S.A. § 3929 provides as follows, in pertinent part, with respect 

to the grading of retail theft offenses:

(1) Retail theft constitutes a:

* * *

(iv) Felony of the third degree when the offense is a third or 

subsequent offense, regardless of the value of the 

merchandise.

18 Pa.C.S.A. § 3929(b)(1)(iv). 

This Court has previously held the information does not need to specify 

the prior retail thefts for a retail theft to be graded as a third-degree felony. 

In Commonwealth v. Orrs, 640 A.2d 911 (Pa. Super. 1994), this Court 

stated:

[t]he failure to specify in the information the crimes previously 

committed, establishing the basis for charging a felony three, does 

not affect the jurisdiction of the court to hear the case and convict 

as a felony, third degree. Prior offenses need not be proven at 

the preliminary hearing or at trial [to] establish the appropriate 

grading of such offense for which the accused may be tried. The 

accused need only be placed on notice that the Commonwealth 

will seek a third[-]degree felony sentence in the event of 

conviction. 

Orrs, 640 A.2d at 912-13 (quotation marks and citations omitted). Thus, this 

Court held where the criminal complaint and the information cited the correct 

statute and grading, including the notation “F3” it was sufficient to put the 
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defendant on notice the Commonwealth was charging him with a felony. See 

id. We concluded:

[h]ence, the requisite notice and averment of a third[-]degree 

felony having been contained in the information and complaint, 

jurisdiction to hear the matter . . . clearly was present. The prior 

offenses in grading retail theft do not constitute substantive 

elements of the offense (felony third degree, Retail Theft); as 

such, evidence only may be produced at sentencing for purposes 

of grading the crime under subsection (b), Grading.

Id. at 913 (emphasis eliminated).

In the instant matter, the criminal complaint, and the bill of information 

both informed Royal the charged offense was an F3. See Criminal Complaint, 

3/25/18, at 3; Information, 10/1/18, at 1-2 (unnumbered). Further, Royal 

acknowledged in a pretrial motion the Commonwealth graded the offense as 

a felony. See, e.g., Motion to Modify Pretrial Bail, 1/6/20, at 1. Thus, Royal 

received the required notice. See Orrs, 640 A.2d at 912-13. Royal’s third 

issue fails.8

In his final issue, Royal challenges the legality of the imposition of 

restitution because the trial court failed to comply with the dictates of 18 

Pa.C.S.A. § 1106. See Royal’s Brief at 46-48. Royal also claims the amount 

of restitution imposed by the trial court is incorrect. See id. at 48.

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8 We are not persuaded by Royal’s attempt to distinguish Orrs. See Royal’s 

Brief at 17-25. The cases he cites either predate Orrs, do not concern the 

retail theft statute, are legally and factually distinguishable, or are not binding 

precedent. See id. Orrs is binding precedent in this matter. See Orrs, 640 

A.2d at 912-13.
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A challenge to the authority of the trial court to impose an order of 

restitution is a challenge to the legality of sentence; and a challenge that the 

amount of restitution is speculative or incorrect is a challenge to the 

discretionary aspects of sentence. See Commonwealth v. Schutzues, 54 

A.3d 86, 92 (Pa. Super. 2012). Royal raises his challenges to the award of 

restitution for the first time on appeal, and, therefore, the trial court did not 

address the issue in its opinion. See Trial Court Opinion, 10/15/21, at 16-20. 

As noted, a challenge to the amount of a restitution award based on the 

trial court’s consideration of the Commonwealth’s evidence regarding loss is a 

challenge to the discretionary aspects of sentence, not the legality of 

sentence. See Commonwealth v . Weir, 239 A.3d 25, 38 (Pa. 2020). Royal 

waived this claim because he raised it for the first time on appeal. See 

Commonwealth v. Sulpizio, 281 A.3d 352, 359 (Pa. Super. 2022) (holding 

challenge to the amount of restitution pertains to the discretionary aspects of 

sentence and is waived when not raised in the trial court). 

Royal also raises his challenge to the trial court’s alleged failure to 

comply with 18 Pa.C.S.A. § 1106 for the first time on appeal. This is a nonwaivable challenge to the legality of Royal’s sentence over which our scope of 

review is plenary, and our standard of review is de novo. See 

Commonwealth v. Laur, 295 A.3d 241, 243 (Pa. Super. 2023). 

Pennsylvania law provides for mandatory restitution where “property of a 

victim has been stolen, converted or otherwise unlawfully obtained, or its 
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value substantially decreased as a direct result of the crime[.]” 18 Pa.C.S.A. 

§ 1106(a). The statute continues:

[a]t the time of sentencing the court shall specify the amount and 

method of restitution. In determining the amount and method of 

restitution, the court:

(i) Shall consider the extent of injury suffered by the victim, 

the victim’s request for restitution as presented to the 

district attorney in accordance with paragraph (4) and such 

other matters as it deems appropriate.

(ii) May order restitution in a lump sum, by monthly 

installments or according to such other schedule as it deems 

just.

18 Pa.C.S.A. § 1106(c)(2)(i-ii).

Our Supreme Court has explained, “restitution must properly be 

included in a sentence. . . . [T]he Superior Court held these requirements 

provide the defendant with certainty as to his sentence, and at the same time 

allow for subsequent modification . . . if necessary.” Commonwealth v. 

Dietrich, 970 A.2d 1131, 1133-34 (Pa. 2009) (citations and brackets and 

internal quotation marks omitted). Failure to comply with Section 1106(c)(2) 

results in an illegal sentence. See Commonwealth v. Mariani, 869 A.2d 

484, 485–86 (Pa. Super. 2005) (invalidating as illegal trial court’s order at the 

sentencing hearing which failed to specify both the amount and method of 

restitution and postponed determining same until after sentencing hearing). 

Here, at sentencing, the Commonwealth informed the court Royal owed 

restitution in the amount of $4,568.95. N.T., 7/19/21, at 41. Royal offered 

no objection and the Court immediately imposed restitution in that amount. 
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See id. at 45. Thus, Royal’s claim the trial court did not specify the amount 

at sentencing as required by Section 1106(c)(2) is belied by the record. 

However, the trial court did not specify the method of restitution at the 

sentencing hearing, instead including it in the sentencing order. See N.T., 

7/19/21, at 41-45; Sentencing Order, 7/19/21 at 1 (unnumbered). While we 

cannot find any published opinion addressing this method of specification, in 

an unpublished memorandum,9this Court stated it was not sufficient to 

include the method of payment in a sentencing order, rather it must be stated 

at the time of sentencing. See Commonwealth v. Galvin, 446 WDA 2019

(Pa. Super. 2020) (unpublished memorandum at 8-9 n.5) (remanding for 

resentencing because including the method of payment of restitution in the 

sentencing order rather than stating it at the time of sentencing did not comply 

18 Pa.C.S.A. § 1106(c)(2)). While Galvin is not binding precedent, it is of 

persuasive value. Accordingly, we are constrained to find the trial court’s 

failure to specify the method of payment at the sentencing hearing rendered 

that portion of Royal’s sentence illegal. Therefore, we vacate the portion of 

Royal’s judgment of sentence that ordered restitution. See Commonwealth 

v. Muhammed, 219 A.3d 1207, 1212-13 (Pa. Super. 2019).

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9 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision of 

Superior Court filed after May 1, 2019, may be cited for persuasive value). 
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For the reasons discussed above, we affirm in part but vacate the portion 

of Royal’s judgment of sentence that imposed restitution. We remand for 

resentencing limited to the reimposition of $4,568.95 in restitution and an onthe-record specification of the method of payment.

Judgment of sentence affirmed in part and vacated in part. Case 

remanded. Jurisdiction relinquished.

Date: 2/20/2024