Com. v. Nellom, F.
234 A.3d 695
Pa. Super. Ct.2020Background:
- PECO representatives and police responded to 520 Keystone Ave. on Sept. 20, 2018 and discovered the basement meter was altered and replaced by a foreign meter; outside tap connections appeared loose and unsafe.
- Appellant Frank Nellom was the sole occupant at the house during the PECO visit; records and officer testimony tied him to the address and to running a business there.
- Nellom offered to pay half of what he owed to have power restored and later called PECO to request reconnection; PECO calculated the loss at $3,658 (including $1,180 in repair/response fees).
- Nellom proceeded pro se at trial (standby counsel provided); jury convicted him of theft of services and found the value exceeded $50.
- Trial court sentenced Nellom on a felony-3 grading to 21–42 months plus probation and restitution; on appeal the Superior Court affirmed the conviction but vacated the sentence and remanded for resentencing as a misdemeanor of the second degree because the jury did not find the higher-value elements required to support felony grading.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that meter was tampered with and Nellom benefited (access/residency) | Commonwealth: Foreign meter, PECO testimony, Nellom present at premises, business records, his admission he lived there and attempted to negotiate payment — supports inference he benefited and had access. | Nellom: No proof PECO cut/disconnected outside line; he did not own property so inference against owner irrelevant. | Conviction affirmed. Evidence (meter tampered, presence, admissions, records) supported inference of access/use and benefit under §3926(d)(1). |
| Admission of PECO billing history (billing records) | Commonwealth: No dispute that billing records are admissible if properly offered; burden on Nellom to introduce them. | Nellom: Trial court refused to let him show jurors billing history to prove he didn’t need to steal electricity. | Issue waived or without record support; court noted Nellom never introduced bills and later chose not to testify, so claim fails. |
| Admission of LIHEAP payment evidence (showing assistance paid bills) | Commonwealth: Such evidence could be relevant but must be properly offered; limits on timeframe apply. | Nellom: LIHEAP paid his PECO bills, so he had no motive to steal power. | Waived or not barred by court; Nellom cross-examined about LIHEAP but did not present bills and opted not to testify — claim denied. |
| Verdict slip/grading and sentence legality (value finding required to elevate grade) | Commonwealth: Presented evidence of total loss > $2,000 and charged felony-3; argues precise market value need not be fixed beyond reasonable proof. | Nellom: Jury only found value exceeded $50; without a jury finding that amount exceeded statutory thresholds, conviction cannot be graded a felony and sentence is illegal. | Although conviction stands, under Apprendi the jury did not decide facts necessary to grade the offense above a misdemeanor-2. Sentence vacated and remanded for resentencing consistent with a misdemeanor-2 maximum. |
Key Cases Cited
- Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013) (standard for sufficiency review)
- Commonwealth v. Deer, 615 A.2d 386 (Pa. Super. 1992) (statutory inference when person with access benefits from tampered meter)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (any fact increasing penalty beyond statutory maximum must be submitted to jury)
- Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013) (discussion of scope of illegal sentence doctrine)
- Commonwealth v. Matty, 619 A.2d 1383 (Pa. Super. 1993) (failure to contemporaneously object to jury instructions/verdict slip waives challenge)
- Commonwealth v. Cole, 167 A.3d 49 (Pa. Super. 2017) (preservation requirement: appellant must identify where issue was preserved in record)