from the Judgment of Sentence September 28, 2015 In the Court
of Common Pleas of Bradford County Criminal Division at
BEFORE: BOWES, SHOGAN AND FITZGERALD, [*] JJ.
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.
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:
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.
(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
(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
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).
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. That statute, in its entirety, reads:
"A person is guilty of petit larceny when he steals
property." N.Y. P.L. § 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 ...