J-S27017-23
2023 PA Super 213
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TARA ANN SELADONES :
:
Appellant : No. 377 MDA 2023
Appeal from the Judgment of Sentence Entered March 1, 2023
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000145-2022
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
OPINION BY BOWES, J.: FILED OCTOBER 24, 2023
Tara Ann Seladones appeals from the judgment of sentence of one to
eighteen months of imprisonment plus costs and restitution imposed upon her
conviction for theft by unlawful taking. We vacate the sentence and remand
for proceedings consistent with this opinion.
By way of background, the victim in this matter, Connie Yutko, kept
currency and silver coins worth approximately $10,000 in a metal firebox in
the spare bedroom of her home. In October of 2021, after falling ill from
COVID-19, Ms. Yutko was admitted to the hospital where she remained for
approximately eight days. Shortly after admission, she texted Appellant and
asked if Appellant would go to her house to take care of her cats. Ms. Yutko
had previously hired Appellant to watch after her home and pets while on
vacation.
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A few weeks after being discharged, Ms. Yutko realized that the firebox
and all its contents were missing. She contacted the police and provided
details about the box, currency, and coins to Pennsylvania State Police Trooper
Steven Kase, Jr. She also informed the trooper that she suspected Appellant
had taken the items, as no one else was in her home while she was at the
hospital and there were no signs of forced entry. Trooper Kase then
interviewed Appellant in a common area outside her apartment building. After
denying any involvement in the theft numerous times, and after multiple
assurances from the trooper that Ms. Yutko had no desire to press charges if
the responsible person came clean, Appellant eventually confessed that she
took the firebox and items therein to satisfy her gambling habit. The
confession was recorded with a microphone the trooper was wearing. Trooper
Kase arrested Appellant several minutes later.
Appellant was subsequently charged with a single count of theft by
unlawful taking, graded as a felony of the third degree since the value of the
objects taken was purported to be over $2,000. The matter proceeded to a
jury trial, wherein Ms. Yutko and Trooper Kase testified as outlined above.
The Commonwealth also introduced a portion of the recording of Appellant’s
confession prior to her arrest. Appellant did not testify. Her defense, as
developed by the argument of her attorney, was that the confession was
obtained through coercive and deceptive practices and that Trooper Kase
rushed to judgment by failing to investigate others who could be responsible.
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At the conclusion of trial, the jury convicted Appellant of the sole theft count.
Critically, the verdict slip did not contain an interrogatory for the jury to find
the value of the items taken. Similarly, in the trial court’s closing instructions
to the jurors, it did not direct them to determine the value of the goods taken.
On the day Appellant was initially scheduled to be sentenced, she filed
a motion for extraordinary relief asserting, inter alia, that her conviction
should be graded as a misdemeanor of the third degree since there was no
factual finding as to the value of the items stolen. The trial court continued
sentencing to consider briefs filed by Appellant and the Commonwealth. On
February 17, 2023, the court entered an opinion and order denying the
motion. Appellant was subsequently sentenced as indicated above, with the
theft graded as a felony of the third degree.
Appellant filed a timely notice of appeal, and both Appellant and the trial
court complied with Pa.R.A.P. 1925.1 Appellant presents the following
question for our resolution: “Whether the trial judge committed an error of
law in sentencing [Appellant] for theft by unlawful taking graded as a [third-]
degree felony instead of a [third-]degree misdemeanor after the jury failed to
determine the value of the items taken?” Appellant’s brief at 4 (cleaned up).
We begin by observing that a “claim that the court improperly graded
an offense for sentencing purposes implicates the legality of a sentence.”
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1 The trial court entered a statement in lieu of opinion, attaching its opinion
and order dated February 17, 2023.
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Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa.Super. 2013). In
reviewing such a challenge, “our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Stanley,
259 A.3d 898, 992
(Pa.Super. 2021) (citation omitted).
In relevant part, the Crimes Code provides for the grading of theft
offenses as follows:
§ 3903. Grading of theft offenses
....
(a.1) Felony of the third degree.—[With exceptions not
pertinent here], theft constitutes a felony of the third degree if the
amount involved exceeds $2,000, or the property stolen is an
automobile, airplane, motorcycle, motorboat or other motorpropelled vehicle, or in the case of theft by receiving stolen
property, if the receiver is in the business of buying or selling
stolen property.
....
(b) Other grades.—Theft not within . . . (a.1) . . . constitutes a
misdemeanor of the first degree, except that if the property was
not taken from the person or by threat, or in breach of fiduciary
obligation, and:
(1) the amount involved was $50 or more but less than $200
the offense constitutes a misdemeanor of the second
degree; or
(2) the amount involved was less than $50 the offense
constitutes a misdemeanor of the third degree.
18 Pa.C.S. § 3903. The statute further states that “[w]hen the value of
property cannot be satisfactorily ascertained pursuant to the standards set
forth in . . . this subsection[,] its value shall be deemed to be an amount less
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than $50.” 18 Pa.C.S. § 3903(c)(3). In such a case, the offense would
constitute a third-degree misdemeanor.
Appellant argues that since the jury did not find the value of the stolen
items on the verdict slip or otherwise, the amount should be deemed to be
less than $50 and her theft must be graded as a misdemeanor of the third
degree. See Appellant’s brief at 8-11. Since the trial court sentenced her to
a felony, she avers that her sentence is illegal and must be vacated. Id. at
10-11. After review, we are constrained to agree with Appellant.
Although she does not articulate it as such, Appellant’s challenge
invokes a legal principle arising from a line of cases beginning with Apprendi
v. New Jersey, 530 U.S. 466 (2000). There, the United States Supreme
Court held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.”
Id. at
490. In the same vein, this Court, citing Apprendi, has stated that “a fact
that increases the maximum penalty or changes the grade of an offense
must be submitted to a jury and proven beyond a reasonable doubt.”
Commonwealth v. Panko,
975 A.2d 1189, 1191 (Pa.Super. 2009)
(emphasis added). One notable carveout to this prohibition is that a judge
may change the grading of an offense based on facts admitted by a defendant,
even if they are not determined by the factfinder. See Commonwealth v.
Johnson,
961 A.2d 877, 881 (Pa.Super. 2008); see also Cunningham v.
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California, 549 U.S. 270, 283 (2007) (stating that “[o]ur precedents make
clear . . . that the statutory maximum for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant” (cleaned up)).
In Johnson, the defendant was convicted by a jury of intimidation of a
witness, a crime graded as a felony of the first degree if the underlying case
in which the victim was involved included a charge of murder. See 18 Pa.C.S.
§ 4952(b)(2). During closing argument, Johnson’s counsel readily conceded
that the victim was a witness against Johnson’s brother relating to the
brother’s murder charges. See Johnson, supra at 883. Accordingly, the
trial court sentenced him on the intimidation count as a felony of the first
degree.
Johnson appealed, asserting a challenge under Apprendi because the
jury did not determine as a matter of fact that the victim was a witness in a
case involving a murder charge. This Court affirmed, holding that based on
counsel’s admission, made during trial in the presence of the jury, “there was
no need for the jury to make a specific factual finding regarding the crime to
which [the victim] had been a witness.” Id. at 883. Supporting that decision,
we cited historic precedent from our High Court standing for the proposition
that “[i]n trials for felony, admissions of fact which the government is bound
to prove are not permitted unless made at the trial in open court by the
prisoner or his counsel.”
Id. at 882 (citing Commonwealth v. McMurray,
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47 A. 952, 953 (Pa. 1901) (emphasis added)). As such, we determined that
counsel’s closing statements at trial constituted an admission of fact sufficient
to satisfy Apprendi.
Here, the trial court relied upon our holding in Johnson in rejecting
Appellant’s claim, opining that Appellant’s pre-arrest confession was sufficient
to supplant any need for the jury to make a factual determination as to value.
See Opinion of Court, 2/17/23, at 5. The court also highlighted that Trooper
Kase clearly indicated prior to the confession that the items in question were
worth approximately $10,000, with the bulk of that being cash, and that the
value was never disputed by Appellant before or during trial. Id. Accordingly,
it determined that since the value of the stolen items was over $2,000,
pursuant to 18 Pa.C.S. § 3903(a.1) the theft was properly graded as a felony
of the third degree.2
We find Johnson to be factually distinguishable and decline to extend
the Apprendi exception articulated therein to the instant matter. Here,
Appellant made no admission as to the value of the stolen items in trial in
open court, either herself or through her attorney.3 Unlike in Johnson, this
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2 In its brief, the Commonwealth essentially adopts the reasoning of the trial
court, particularly its reliance on Commonwealth v. Johnson, 961 A.2d 877
(Pa.Super. 2008). See Commonwealth’s brief at 2-3.
3 Indeed, a close review of the pre-arrest confession reveals that while
Appellant admitted to taking the firebox, she never conceded or admitted the
value of the currency or silver coins contained therein. On the contrary, it
(Footnote Continued Next Page)
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is not a case where Appellant made representations to the jury that obviated
the need for it to decide some admittedly uncontested fact. Rather, this
situation entailed an out-of-court confession that Appellant claims she was
tricked into making based on lies by Trooper Kase, and that the jury should
reject it.
Our High Court has made it clear that a pre-trial confession is not
conclusive of guilt, and therefore does not have the same evidentiary effect
as an admission or stipulation made in open court. More specifically, the Court
stated as follows:
[E]ven if a confession has properly been admitted into evidence
at trial, a finder of fact is still not compelled to believe the matters
contained in the confession and to automatically return a verdict
of guilty, since the confession is not decisive of the issue of the
defendant’s guilt or innocence. See Crane v. Kentucky, 476
U.S. 683, 689, (1986) (“Confessions, even those that have been
found to be voluntary, are not conclusive of guilt. And, as with
any other part of the prosecutor’s case, a confession may be
shown to be ‘insufficiently corroborated or otherwise unworthy of
belief.’”). The finder of fact remains the final arbiter of the
question of the veracity of the matters contained in the confession
and is wholly free to decide its impact, if any, on the central
question of the defendant’s guilt or innocence. Commonwealth
v. Ewell, 319 A.2d 153, 156 (Pa. 1974) (“A defendant’s voluntary
out-of-court statement is merely another piece of evidence to be
considered in resolving the ultimate issue of guilt or innocence,
and jurors can attach as much or as little weight to it as they see
fit.”). Ultimately, the finder of fact is free to choose to believe all,
part, or none of the contents of a confession in arriving at its
verdict. Commonwealth v. Sherwood, 982 A.2d 483, 493 (Pa.
2009) (“A jury or a trial Court can believe all or a part of or none
of a defendant’s statements, confessions or testimony.”);
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was Trooper Kase, not Appellant, that declared the value of these items during
the interview.
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Commonwealth v. Williams, 176 A.2d 911, 918 (Pa.Super.
1962) (“A jury is not required to accept a confession as true even
if it is voluntarily made.” (emphasis original)).
Commonwealth v. Wright, 14 A.3d 798, 816–17 (Pa. 2011) (cleaned up).
Accordingly, to hold that Appellant’s pre-arrest confession constituted
an admission for Apprendi purposes, despite being made outside of trial and
the presence of the jury, would run afoul of our Supreme Court’s precedent.
Such a holding would allow the Commonwealth to use a confession at trial to
bypass its obligation to prove elements of a crime beyond a reasonable doubt,
abrogating the jury’s function in weighing the evidentiary value of the
confession.4 It would also violate the rule articulated by our High Court in
McMurray, on which Johnson relied, that no admission of fact can be made
in a felony trial unless done by the defendant or her counsel in trial and in
open court. McMurray, supra at 953. We cannot countenance such a result.
Therefore, we find no basis in which to extend Johnson’s holding to this
matter.
Rather, this case is analogous to Commonwealth v. Kearns, 907 A.2d
649 (Pa.Super. 2006), cited by Appellant. There, Kearns was convicted of
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4 We note that the jury submitted written questions to the trial court before
rendering it verdict. Significantly, they asked (1) whether the contents of the
box were relevant, and (2) who owned the items inside the box. See N.T.
Trial, 10/28/22, at 82 (Court Exhibit 1). As such, despite finding Appellant
guilty, it is not certain that the jury believed every aspect of the confession or
that the Commonwealth proved the value of the contents beyond a reasonable
doubt.
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involuntary manslaughter, among other crimes. Id. at 651. When he was
sentenced, the trial court graded that offense as a felony of the second degree
pursuant to 18 Pa.C.S. § 2504(b) because the evidence demonstrated that
the victim was under twelve years of age and in the care of Kearns at the time
the fatal injuries were inflicted. Id. During trial, Kearns never contested that
the victim was only two years old at the time of death. Id. at 658. Further,
there was no place on the verdict slip to reflect any finding as to the victim’s
age. Id. Kearns appealed, arguing that he should be resentenced to a lower
grading of involuntary manslaughter under Apprendi since the age of the
victim was never determined as a matter of fact. Id. at 652.
This Court reversed, vacating Kearns’s sentence. After discussing the
law under Apprendi and its progeny, we concluded that Kearns could not be
sentenced to a felony of the third degree, as the relevant factual
determinations were neither admitted by the defendant nor found by a jury
beyond reasonable doubt. Id. at 655. We so held despite argument from the
Commonwealth that there was overwhelming evidence that the victim was
two years old, and that the victim’s age was not contested by Kearns at trial.
In rejecting those arguments, we stated as follows:
No matter the volume of evidence presented, nor the
quality of the evidence, or even a lack of contrary evidence,
the production of evidence cannot stand as a proxy for a
specific finding by the factfinder. If the preceding were not
true, then irrespective of the jury’s verdict an acquittal could be
set aside if a reviewing court concluded that the premise of guilt
had been conclusively established. Indeed, there would be no
point in proceeding to jury deliberation in some cases. If the court
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concluded at the close of evidence that the defendant’s guilt had
been “conclusively proven,” the court would be entitled to enter a
guilty verdict directly. Of course, this is not the law, nor could it
be if we are to preserve the constitutional right to trial by jury.
Moreover, it is axiomatic that the trier of fact, while passing upon
the credibility of witnesses and the weight of the proof, is free to
believe all, part, or none of the evidence. This principle of law
relegates the factfinding process to the jury, even where
the ultimate finding seemingly flies in the face of the
uncontradicted evidence.
Id. at 658 (cleaned up and emphases added).
The matter sub judice is materially similar to Kearns. The jury never
determined as a matter of fact the value of the items taken. Further, the trial
court did not instruct the jury that it must determine a certain value to find
Appellant guilty. Without this determination, there was no fact with which to
increase the grading of Appellant’s theft by unlawful taking conviction.
The only difference between this case and Kearns is that the
Commonwealth here entered into evidence Appellant’s pre-arrest confession,
which included statements by the trooper, not Appellant, as to the value of
the items stolen. We are unconvinced that this distinction is pertinent for the
reasons discussed above. The confession was evidence, perhaps
overwhelming evidence, that a theft was committed. However, no matter how
persuasive it was, it cannot be used to impute an in-court admission
concerning the value of the stolen items to Appellant when neither she nor
her attorney made one. Kearns, supra at 658. This is especially so because
the confession was “not decisive of the issue of [her] guilt or innocence.”
Wright, supra at 816.
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Since the jury never made a finding as to the value of the property
taken, Appellant’s sentence for theft by unlawful taking must be graded at its
lowest level, a misdemeanor of the third degree.
Judgment of sentence vacated. Remanded for proceedings consistent
with this opinion. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/24/2023
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