Com. v. Yacobucci, T.

• Court: Superior Court of Pennsylvania
• Decided: March 15, 2023
• Docket: 544 WDA 2022
• Status: Unpublished

Opinion

J-A02005-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS J. YACOBUCCI, II : : Appellant : No. 544 WDA 2022

Appeal from the Judgment of Sentence Entered April 7, 2022 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000858-2018

BEFORE: BOWES, J., MURRAY, J, and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED: MARCH 15, 2023

Thomas J. Yacobucci, II appeals from the judgment of sentence of a

three-hundred-dollar fine and court costs, which was imposed after a jury

convicted him of theft by unlawful taking and receiving stolen property

(“RSP”). We vacate Appellant’s conviction and sentence for RSP and affirm

his judgment of sentence in all other respects.

In 2017, Dennis Nixon owned a four-bay trailer with modified sideboards

and a back gate. See N.T. Jury Trial, 2/2/22, at 21-22. Mr. Nixon stored the

trailer at his door-manufacturing business where he allowed employees to

borrow it for their own personal use. Id. at 21, 40. Terry Erickson was an

employee of Mr. Nixon who often borrowed the trailer. Id. at 25-26. On the

weekends and evenings, Mr. Erickson worked as a handyman for Appellant,

who owned a car wash and several rental properties. Id. at 34.

* Retired Senior Judge assigned to the Superior Court. J-A02005-23

In October of 2017, Mr. Erickson received permission to borrow Mr.

Nixon’s trailer to assist Appellant in retrieving items he had purchased at an

auction. Id. at 49. Appellant and Mr. Erickson transported the items from

the auction to Appellant’s car wash using the trailer. Appellant then stored

the trailer and items inside a car wash bay. Over the next two months, Mr.

Erickson and his son, Glenn, observed the trailer parked in the car wash bay.1

In December, Mr. Erickson contacted Appellant about returning the trailer to

its rightful owner, Mr. Nixon. Specifically, Mr. Erickson sent Appellant three

letters and called him several times. Id. at 75. Appellant told him that he

would not relinquish the trailer until Mr. Erickson brought him security

cameras that Mr. Erickson’s wife had been working on for the car wash and

returned money that Appellant had prepaid to Mr. Erickson for future work.

On February 26, 2018, Mr. Erickson, Mrs. Erickson, and Glenn arrived

at the car wash and returned the security cameras and money.

Communications broke down when they requested the return of the trailer.

Appellant became hostile and insisted that the Ericksons “get off his property.”

Id. at 43. The Ericksons vacated the property but remained close by while

they called the Altoona Police Department to report the trailer as stolen.

Officers William Hanelly, Jr. and Scott Hand responded to the car wash, where

they separately encountered the Ericksons and Appellant and attempted to

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1 Glenn often assisted Mr. Erickson with his handyman work for Appellant.

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peacefully resolve the dispute. However, Appellant was “dismissive” of the

officers and refused to return the trailer. Id. at 105, 109.

On March 5, 2018, Detective Terry Merritts was assigned to the case

and called Appellant, identifying himself as a police officer and stating that he

was calling about the trailer. Id. at 147. Appellant immediately became “very

hostile,” stated this was “a civil matter,” and shouted that “he was done

talking to me and it was a waste of his time,” before terminating the phone

call. Id. at 147-48. Thereafter, the Commonwealth charged Appellant with

theft by unlawful taking-movable property and RSP, both classified as

misdemeanors in the first degree for which Appellant, if convicted, would be

subject to a term of up to five years of incarceration.

On August 23, 2019, the parties proceeded to a non-jury trial on the

summary offense of theft by unlawful taking. After seven witnesses testified,

the trial court entered an order and opinion convicting Appellant of theft by

unlawful taking. On February 19, 2020, the Court held a sentencing and

restitution hearing, at which the court ordered Appellant to pay $1,187.42 in

restitution to Mr. Nixon, a fine of $100, and court costs. Appellant paid the

restitution in cash to Mr. Nixon the same day. Since Appellant paid the

restitution immediately, the court stated that it would not impose a sentence

of incarceration or probation. On March 13, 2020, the court executed a

“consent order” which was signed by the Commonwealth and trial counsel and

amended Appellant’s conviction from theft by unlawful taking to retail theft,

which is a summary offense.

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Appellant filed a timely notice of appeal challenging the sufficiency of

the evidence to convict him of retail theft. This Court vacated the conviction

and remanded for a new trial, explaining that the trial court did not have the

discretion to reclassify a crime as a summary offense, alter the verdict after

trial to find Appellant guilty of a crime for which he was not tried, or sua sponte

enter a consent order amending the criminal information. See

Commonwealth v. Yacobucci, 258 A.3d 557 (Pa.Super. 2021) (non-

precedential decision at 6-8). Further, since the record was devoid of any

evidence that Appellant waived his constitutional right to a jury trial and the

theft offense, as properly graded, could have resulted in a term of five years’

incarceration, we vacated the conviction and remanded for a new trial. Id.

(non-precedential decision at 9-10).

On February 2, 2022, Appellant proceeded to a jury trial on the original

charges. At the outset, the trial court issued a sequestration order barring all

Commonwealth witnesses from the courtroom except for Detective Merritts,

the affiant.2 After the testimony of Officer Hanelly, where he was cross-

examined about his reasoning for not seeking a search warrant for the car

wash to confirm the presence of the trailer, a brief recess occurred.

Thereafter, Appellant alleged that Officer Hanelly, Officer Hand, and Detective ____________________________________________

2 The issuance of the sequestration order does not appear in the trial transcript. However, the Commonwealth, Appellant, and the trial court agree that sequestration was ordered at the start of the jury trial and the record indicates that a brief meeting in chambers occurred at that time. See N.T. Jury Trial, 2/2/22, at 1. Thus, for the purposes of this appeal we accept that a sequestration order was issued.

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Merritts had violated the sequestration order during the recess. The trial court

held a hearing outside the presence of the jury at which Officer Hanelly, Officer

Hand, and Detective Merritts testified that they had been talking generally

about the staleness of information as it applied to search warrants. Appellant

moved for a mistrial, which the court denied. Although the court agreed with

Appellant that the Commonwealth violated the sequestration order, the court

disagreed that a mistrial was necessary. Instead, the court barred the

Commonwealth from presenting Officer Hand’s testimony, the only remaining

Commonwealth witness subject to the sequestration order. Since Detective

Merritts was not subject to the sequestration order and was not involved in

the investigation at the same time as Officers Hanelly and Hand, the court

allowed Detective Merritts to testify. Notably, Detective Merritts’ testimony

did not concern the staleness of a search warrant.

At the conclusion of the Commonwealth’s case-in-chief, Appellant

moved for judgment of acquittal based on insufficient evidence, which the trial

court denied. Appellant elected not to testify, opining that “we’ve all heard

from enough clowns in the circus.” Id. at 154. After issuing its instructions,

the court answered one jury question without objection. Ultimately, the jury

found Appellant guilty of both charges. However, since the jury specifically

indicated that the amount taken was not between $200 and $2,000,

Appellant’s convictions were downgraded to third-degree misdemeanors. See

18 Pa.C.S. § 3903(c); see also Commonwealth v. Thompson, 279 A.3d

1261 (Pa.Super. 2022) (non-precedential decision at 5) (finding that where

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the value of the goods cannot be satisfactorily ascertained the value shall be

deemed to be less than $50, constituting a misdemeanor of the third degree).

The trial court sentenced Appellant to pay a $300 fine for the theft

conviction. The RSP count merged with the theft conviction for sentencing

purposes. Appellant did not file a post-sentence motion. Instead, this timely

notice of appeal followed. Both Appellant and the trial court have complied

with the mandates of Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Did the trial court err in denying [Appellant’s] motion for acquittal at the close of the Commonwealth’s case with regard to the theft by unlawful taking and [RSP] charges?

2. Did the trial court err in not declaring a mistrial or taking greater curative action because of the violation of the sequestration order by the Commonwealth’s police witnesses?

3. Did the trial court err in failing to provide sufficient answer, before the verdict was delivered, to Juror No. 3’s question about “what type of vehicle was used to pull the trailer[?”]

Appellant’s brief at 2.

We first consider Appellant’s averment that the trial court erred when it

denied his motion for judgment of acquittal. A motion for judgment of

acquittal challenges the sufficiency of the evidence to sustain a conviction on

a particular charge and is granted only in cases in which the Commonwealth

has failed to carry its burden regarding that charge. See Commonwealth v.

Emanuel, 86 A.3d 892, 894 (Pa.Super. 2014). Our scope and standard of

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review when considering challenges to the sufficiency of the evidence are well

settled:

Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. [T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the fact-finder to determine the weight to be accorded to each witness’s testimony and to believe all, part, or none of the evidence. The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact- finder.

Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa.Super. 2017)

(citations and quotation marks omitted).

Theft by unlawful taking, under the subsection charged here, occurs

when a person “unlawfully takes, or exercises unlawful control over, movable

property of another with intent to deprive [the other] thereof.” 18 Pa.C.S.

§ 3921(a). The Crimes Code defines “deprive” as the following:

(1) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or

(2) to dispose of the property so as to make it unlikely that the owner will recover it.

18 Pa.C.S. § 3901.

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Appellant claims that he was in lawful possession of the trailer and

lacked the mens rea to permanently deprive Mr. Nixon of the property. See

Appellant’s brief at 11. However, the evidence, viewed in the light most

favorable to the Commonwealth, supports Appellant’s theft by unlawful taking

conviction. Through the testimony of Mr. Erickson, Mrs. Erickson, and Glenn,

the evidence established that Appellant refused to return the trailer which he

knew belonged to Mr. Nixon. Despite three letters, multiple phone calls, an

in-person meeting, and police attempts to act as a mediator between the

parties, Appellant never returned the trailer to Mr. Erickson so that he could

return it to Mr. Nixon. Accordingly, the evidence was sufficient to establish

that Appellant possessed Mr. Nixon’s trailer with the intent to deprive him of

it.3

Appellant also contends that he was entitled to a judgment of acquittal

on his conviction for RSP. See Appellant’s brief at 13. Appellant does not

dispute that the trailer was not his and that he willingly retained it. Rather,

Appellant claims that the record is devoid of any evidence that the trailer was

stolen at the time he first received it. See Appellant’s brief at 13; see also

Appellant’s reply brief at 1. We are constrained to agree with Appellant.

3 In a sub-claim, Appellant contends that the trial court erred by issuing an incomplete jury instruction for taking movable property. See Appellant’s brief at 11. However, Appellant did not object when the allegedly erroneous instruction was delivered. Thus, this claim is waived. See Commonwealth v. Rivera, 938 A.2d 1211, 1229 (Pa. 2009); see also Pa.R.A.P. 302(a).

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RSP “is established by proving that the accused ‘intentionally receives,

retains, or disposes of movable property of another knowing that it has been

stolen, or believing that it has probably been stolen, unless the property is

received, retained or disposed of with intent to restore it to the owner.’”

Commonwealth v. Galvin, 985 A.2d 783, 792 (Pa. 2009) (quoting 18

Pa.C.S. § 3925). In order to sustain a conviction for receiving stolen property,

“the Commonwealth must first establish that the goods in question are

actually stolen[.]” Commonwealth v. Stafford, 623 A.2d 838, 840

(Pa.Super. 1993) (en banc). Indeed, “[i]t is not enough that the

Commonwealth proves only that: 1) [t]he defendant received property of

another; and 2) [h]e received the property knowing it was stolen or believing

it had probably been stolen. The Commonwealth also must establish that the

property was actually stolen.” Id. Further, one cannot be found guilty of

receiving stolen property “simply by retaining property that a reasonable

person would conclude is probably stolen. Under the [current statute], the

defendant must, at a minimum, harbor the personal belief that the item is

probably stolen.” Commonwealth v. Newton, 994 A.2d 1127, 1131–32

(Pa.Super. 2010).

Upon our review of the record, we find that the Commonwealth failed to

prove that the trailer was stolen at the time Appellant received it or when it

was last spotted in Appellant’s possession. Mr. Erickson’s testimony indicated

that he initially lent the trailer to Appellant with the express permission of Mr.

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Nixon and that Appellant was aware that he had Mr. Nixon’s permission to

borrow it. The problem arose months later when Appellant refused to

relinquish control of the trailer. However, our existing precedent requires that

property must be “stolen” at the time of receipt to support an RSP conviction.

See Stafford, supra at 840-41 (“[T]he Commonwealth must prove the goods

were actually stolen in order to obtain a conviction for receiving stolen

property.”); see also Commonwealth v. Morrissey, 654 A.2d 1049, 1054

(Pa. 1995) (concluding that a conviction for receiving stolen property could

not stand since the defendant “could not be guilty of receiving stolen property

which she never stole”). Accordingly, we hold that the trial court erred in

denying Appellant’s motion for judgment of acquittal on the RSP charge. Since

RSP merged into the theft charge for sentencing purposes, the vacatur of the

RSP conviction does not upset the sentencing scheme and we do not need to

remand for resentencing.

In his next claim, Appellant argues that the trial court abused its

discretion when denying his motion for mistrial based on the Commonwealth’s

violation of the sequestration order. See Appellant’s brief at 15.

Where violation of a sequestration order occurs, the remedy selected:

is within the sound discretion of the trial court. In exercising its discretion, the trial court should consider the seriousness of the violation, its impact on the testimony of the witness, and its probable impact on the outcome of the trial. We will disturb the trial court’s exercise of its discretion only if there is no reasonable ground for the action taken.

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Commonwealth v. Rose, 172 A.3d 1121, 1127 (Pa.Super. 2017) (quoting

Commonwealth v. Smith, 346 A.2d 757, 760 (Pa. 1975)). “A mistrial may

be granted only where the incident upon which the motion is based is of such

a nature that its unavoidable effect is to deprive the defendant of a fair trial

by preventing the jury from weighing and rendering a true verdict.”

Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa. 2000). Accordingly,

we review the court’s ruling on such a claim for an abuse of discretion. See

Commonwealth v. Wilson, 273 A.3d 13, 21 (Pa.Super. 2021).

Herein, the trial court found that the sequestration order had been

violated and that barring Officer Hand from testifying was sufficient to cure

any prejudice Appellant suffered from the violation. Since, as Affiant,

Detective Merritts was present for Officer Hanelly’s testimony and his

involvement in the case did not overlap with Officer Hanelly, the court declined

to preclude his testimony.

After examining the circumstances surrounding the violation, we do not

find that the trial court acted unreasonably or that it abused its discretion in

refusing to declare a mistrial. The trial court considered the seriousness of

the violation, its impact on the testimony of each involved witness, and its

probable impact on the outcome of trial. By barring Officer Hand from

testifying and ensuring that Officer Hanelly was not recalled, the court guarded

against the potential that Appellant would be prejudiced by the violation. As

the affiant, Detective Merritts was present for Officer Hanelly’s testimony and,

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later, confined his own testimony to events that transpired after Officers

Hanelly and Hand were no longer involved in the investigation. Thus, his

testimony was not impacted by the hallway conversation and no relief is due.

In Appellant’s final claim, he alleges that the trial court erred when it

failed to provide a sufficient answer to the jury question regarding facts that

were not in evidence. See Appellant’s brief at 17-18. Herein, Juror No. 3

asked, “what type of vehicle was used to pull the trailer?” N.T. Jury Trial,

2/2/22, at 185. The court responded that “the jury was to rely on their own

collective recollection of the evidence and no further answer to the question

can be given” and asked the court reporter to type and print the answer. Id.

at 185. Despite the trial court’s specific inquiry regarding whether there were

any objections to the instruction itself or the means for delivery, Appellant

failed to issue a contemporaneous objection. Id. It is well-established that

“[t]he absence of a contemporaneous objection below constitutes a waiver of

the claim on appeal.” Commonwealth v. Rodriguez, 174 A.3d 1130, 1145

(Pa.Super. 2017) (citing Commonwealth v. Powell, 956 A.2d 406, 423 (Pa.

2008)). Since our review of the record reveals that Appellant failed to place

a timely objection on the record, this claim is waived. See Rodriguez, supra

at 1145.

Consistent with the foregoing, Appellant is not entitled to relief on his

theft conviction, while we vacate Appellant’s conviction for RSP. Since

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vacation of the RSP conviction does not upset the sentencing scheme, we need

not remand for resentencing.

Conviction and sentence for RSP vacated. Judgment of sentence

affirmed in all other respects.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/15/2023

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