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Commonwealth v. Vandyke

Superior Court of Pennsylvania

March 1, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
NIKKI LEA VANDYKE Appellant

         Appeal from the Judgment of Sentence September 28, 2015 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000243-2015

          BEFORE: BOWES, SHOGAN AND FITZGERALD, [*] JJ.

          OPINION

          BOWES, J.

         Nikki Lea Vandyke appeals from the judgment of sentence imposed following her plea to one count of retail theft, graded as a felony of the third degree by the trial court based upon her prior New York convictions. Appellant contends that the trial court erroneously relied on the factual basis of these prior convictions to determine their similarity to Pennsylvania's retail theft statute. We agree, and vacate judgment of sentence.

         The facts are straightforward. On January 19, 2015, Appellant entered a Dollar General store and took, without payment, a number of items worth a total of fourteen dollars and fifty cents. On August 6, 2015, Appellant agreed to plead guilty to one count of retail theft, 18 Pa.C.S. § 3929, which states in pertinent part:

         (a) Offense defined.--A person is guilty of a retail theft if he:

(1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof;

18 Pa.C.S. § 3929(a)(1). The parties agreed that the trial court would determine the grading of the offense, which is governed by the number of prior offenses.

         (b)Grading.--

(1) Retail theft constitutes a:
(i) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.
(ii) Misdemeanor of the second degree when the offense is a second offense and the value of the merchandise is less than $150.
(iii) Misdemeanor of the first degree when the offense is a first or second offense and the value of the merchandise is $150 or more.
(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. § 3929(b). Section 3929(b.1) sets forth the procedure for determining the number of offenses:

(b.1) Calculation of prior offenses.--For the purposes of this section, in determining whether an offense is a first, second, third or subsequent offense, the court shall include a conviction, acceptance of accelerated rehabilitative disposition or other form of preliminary disposition, occurring before the sentencing on the present violation, for an offense under this section, an offense substantially similar to an offense under this section or under the prior laws of this Commonwealth or a similar offense under the statutes of any other state or of the United States.

18 Pa.C.S. § 3929(b.1) (emphasis added).

         On September 28, 2015, the parties appeared for sentencing. The Commonwealth introduced, over Appellant's objections, police reports from Appellant's two petit larceny convictions in New York.[1] That statute, in its entirety, reads: "A person is guilty of petit larceny when he steals property." N.Y. P.L. ยง 155.25. The trial court overruled the objections and reviewed the facts in the reports, which indicated that Appellant stole items from a grocery store and a J.C. Penney's retail establishment. The trial court considered the facts ...


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