J. A34014/14

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

: PATRICK McLOUGHLIN, : No. 743 MDA 2014

: Appellant :

Appeal from the Judgment of Sentence, April 1, 2014, in the Court of Common Pleas of Lebanon County Criminal Division at No. CP

- 38

- CR

- 0001088

- 2013

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

: PATRICK McLOUGHLIN, : No. 969 MDA 201 4

: Appellant :

Appeal from the Judgment of Sentence, May 13, 2014, in the Court of Common Pleas of Lebanon County Criminal Division at No. CP

- 38

- CR

- 0001088

- 2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 20, 2015

Patrick McLoughlin appeals, pro se , from the judgment of sentence

imposed in the Court of Common Pleas of Lebanon County.

The facts, as aptly summarized by the trial court, are as follows:

DEFENDANT’s charges s tem from an incident that occurred overnight on Saturday, June 15, 2013J. A34014/14

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- in front of the residence located at 430 Locust Street in Lebanon. Alane Steif (hereafter “STEIF”) is the owner of the residence. Her boyfriend, Lamont Stanley (hereafter “VICTIM”), was spending the night at the residence while she was out of town. (N.T. 6, 20). VICTIM’s vehicle

-- a unique 2004 White Jaguar X

- type

-- was parked outside of the residence overnight. (N.T. p. 6.) When VICTIM returned to his car on Monday, June 17, he noticed that someone had scratched the side of his vehicle with a sharp object. (N.T. 6, 12).

As a result of prior vandalism, VICTIM and STEIF installed two video cameras on the front of the residence in January of 2013. (N.T. 14

- 15). The video consi sts of two channels that correspond to the two cameras in front of STEIF’s house. (N.T. 8). The first channel shows two individuals “walking off” past VICTIM’s vehicle on June 15, 2013 at approximately 3:25 a.m. (N.T. 9). After they pass, the vehicle s hows scratches on its side caused by “some sort of sharp object.” (N.T. 9). The second channel shows a front view of the individuals approaching the vehicle. (N.T. 8). The video is dark and it is difficult to discern the facial characteristics of the i ndividuals in the video. However, the video clearly depicts one of the men “keying” the victim’s vehicle.

A Summary Hearing was held on April 1, 2014. At the Hearing, VICTIM identified the two men as DEFENDANT and his son, Alan McLoughlin. (N.T. 8). VICTIM admitted that he had never actually met DEFENDANT. (N.T. 10). However, he testified that he was able to identify DEFENDANT because he had seen DEFENDANT drive by him on numerous occasions. (N.T. 11). More importantly, DEFENDANT’s son, Alan McLou ghlin, dated STEIF for approximately six and a half years. (N.T. 11, 22). VICTIM explained that STEIF had shown him pictures of DEFENDANT in the past. (N.T. 11).

STEIF also identified DEFENDANT and his son as the two individuals in the video. (N.T. 2 2, 26).J. A34014/14

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- She explained that she spent a significant amount of time with DEFENDANT during her long relationship with his son, Alan. (N.T. 22). She explained that Alan lived with her at the 430 Locust Street residence for a few years, and DEFENDANT visited them several times a week. (N.T. 22).

STEIF testified that she was able to identify DEFENDANT because he has a very distinct walk resulting from various knee and toe injuries. (N.T. 23). From a side profile view, she could identify the man in the vid eo as DEFENDANT “from the nose, the ears, the clothes that he wears, [and] the way he rolled his shirt.” (N.T. 23

- 24). She explained that he “has slightly larger ears,” (N.T. 25), and “he always had a baseball cap on.” (N.T. 23

- 24). She testified that the hat worn by the individual in the video is consistent with the hat that DEFENDANT frequently wore

-- a black hat with the word “Ireland” in green print. (N.T. 31, 44). She proclaimed that she had “no doubt in [her] mind” that DEFENDANT was the man in the surveillance video. (N.T. 23

- 24). Similarly, she was able to identify Alan because the second man in the video moved “exactly the way Alan moves back and forth” when he walks. (N.T. 26).

Prior to the June 15, 2013 incident, there was some animosi ty between STEIF and DEFENDANT. At some point prior to the incident, DEFENDANT filed a civil action against STEIF for $20,000.00 worth of renovations he made to the 430 Locust Street property. (N.T. 14, 37). STEIF testified that she was not aware of any one else other than DEFENDANT or his son Alan that would have a motive to damage or destroy her property or the property of her boyfriend. (N.T. 31).

DEFENDANT proclaimed his innocence throughout the Hearing. He testified that he did not recognize eith er of the men in the surveillance video, and at the time of the vandalism, he was in his home at 501 East Kline Avenue. (N.T. 38

- 39). DEFENDANT explained that he is very sick, andJ. A34014/14

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- suffers from leukemia, Archer’s Disease, and high blood pressure. (N.T. 3 5). He explained that he takes certain medication for his ailments that may only be taken at night, and that he has not been outside of his house at night after 9:00 p.m. for the last year and a half. (N.T. 39). We note that DEFENDANT’s residence is app roximately one mile from STEIF’s home. (N.T. 41). Further, there is a bar located around the corner from STEIF’s residence. (N.T. 43).

DEFENDANT was initially charged with misdemeanor Criminal Mischief on June 24, 2013. We conducted a bench trial on this charge on April 1, 2014. Following testimony, we determined that DEFENDANT was in fact the culprit who damaged the victim’s vehicle. However, because the Commonwealth did not establish the monetary extent of VICTIM’s damages, this Court found DEFEND ANT guilty of the summary offense of Criminal Mischief. During sentencing, VICTIM presented a claim for restitution in the amount of $1,598.22. Since this value far exceeded the statutory limit for the grading of Criminal Mischief as a Summary Offense, w e concluded that the maximum amount to which VICTIM was entitled to receive for the summary offense was the statutory limit of $500.00. Immediately following trial, we sentenced DEFENDANT to pay the costs of prosecution, a fine of $100.00, and restitution in the amount of $500.00. We advised the Commonwealth that it could file a Motion for Modification of Sentence within 10 days if it could provide case law supporting its claim that VICTIM should be awarded $1,598.22 in restitution.

The Commonwealth fil ed their Motion for Modification of Sentence on April 10, 2014, citing the case of Commonwealth v. Wright , 722 A.2d 157 (Pa. Superior Ct. 1998). We issued a Rule to Show Cause upon DEFENDANT giving him an opportunity to oppose the Commonwealth’s request f or sentence modification. DEFENDANT did not do so. Accordingly, we granted the Commonwealth’s MotionJ. A34014/14

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- on May 12, 2014 and awarded restitution to VICTIM in the amount of $1,598.22. In the interim, DEFENDANT appealed to the Superior Court on April 30, 2014 . DEFENDANT filed a pro se Statement of Matters Complained Of on Appeal on May 12, 2014, and he filed amended versions on May 21, 2014 and May 28, 2014. We author this Opinion pursuant to Pa.R.A.P. 1925 to address DEFENDANT’s appeal and explain our reaso ns for modifying DEFENDANT’s sentence.

Trial court opinion, 6/23/14 at 3

- 7.

On May 20, 2014, the trial court issued an order scheduling a Grazier 1

hearing. On May 21, 2014, appellant filed a pro se notice of appeal from

the May 13, 2014 order. (Docket #27.) Appellant filed an “amended

concise statement of matters complained of on appeal,” and then on May 28,

2014, he filed a pro se “supplement to defendant’s amended concise

statement of matters complained of on appeal.” (Docket #29, 30.) On May

28, 2014, a Grazier hearing was held.

At the outset, we note that appellant’s appeal filed on April 30, 2014,

was premature. The Commonwealth had filed a motion for reconsideration,

which had not been disposed of by the trial court. Because the entry of the

order disposing of the Commonwealth’s motion to modify sentence then

becomes the triggering device for the defendant’s notice of appeal,

appellant’s April 30, 2014 notice of appeal from the April 1, 2014 judgment

of sentence was premature. See Pa.R.Crim. P. 720, Comment. Additionally,

1 Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).J. A34014/14

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-

appellant was acting pro se and without the knowledge of his counsel who

had not yet been granted permission to withdraw. Thus, we dismiss the

appeal filed at No. 743 MDA 2014.

We now turn to the appeal properly filed f rom the May 13, 2014

amended judgment of sentence. Appellant presents the following issues for

our review:

1. Whether a poor quality, blurry surveillance

video of an unrecognizable person (who was, in fact, not appellant) committing an act of vandalism, a long with other evidence disproved by physical facts, is insufficient to prove beyond a reasonable doubt that appellant was guilty of criminal mischief[?]

2. Whether the verdict was against the weight of the evidence where the surveillance video purported to tie defendant to the crime, in fact, showed someone else committing the vandalism[?]

3. Whether the trial court abused its discretion and denied Appellant Due Process by basing its finding of guilt on wrongly assumed facts that were not introduced at trial[?]

4. Whether appellant was denied his Constitutional right to a jury trial when he was tried for a second

- degree misdemeanor and did not voluntarily or knowingly waive his right to a jury trial pursuant to Pa.R.Crim.P. 620[?]

5. Whether the Common wealth attorney committed gross prosecutorial misconduct and overreaching when he intentionally denied Appellant his Constitutional right to a jury trial by dropping the misdemeanor charge, securing a bench

- trial based on the lesser, summary charge, and th en proceeding to try defendantJ. A34014/14

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- on the supposedly

- dropped misdemeanor charge and whether retrying Appellant in that situation would violate Double Jeopardy?

6. Whether the trial court erred by admitting and considering as evidence a private surveillance vi deo that was not properly authenticated[?]

7. Whether the trial court imposed an illegal sentence that was not supported by the evidence[?]

8. Whether the trial court failed to adhere to statutory sentencing requirements when it resentenced Appellant wit hout his knowledge or presence[?]

9. Whether appellant’s trial counsel was ineffective in the following respects:

a. Counsel did not interview or call witnesses who could have testified (1) that Appellant did not own a hat or clothes like those worn by the man in the video and (2) that the man in the video was not Appellant.

b. Counsel did not object to the admissibility of the video, which was not properly authenticated.

c. Counsel did not inform Appellant, or object, when the Commonwealth dropped the misdemeanor charge, requested a bench trial, asserted that Appellant no longer had a right to a jury trial, and then tried Appellant on the misdemeanor charge.

d. Counsel did not inform the trial court that Appellant requested a jury trial or request tha t AppellantJ. A34014/14

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- be colloquyed [sic]. He did not even inform Appellant that he was entitled to a jury trial since the trial was on the misdemeanor charge.

e. Counsel failed to request that Judge Charles recuse himself after Appellant informed counsel that Jud ge Charles was biased against him, based on earlier experiences with the Judge.

f. Counsel did not submit for the Court’s consideration numerous character letters in his possession.

g. Counsel did not challenge Appellant’s conviction as against the weigh t of the evidence even though the video showed someone other than Appellant committing the crime.

h. Counsel did not notify Appellant that the Commonwealth had filed a notice to modify sentence, or that the Court had granted a “Motion for Rule to Show Cau se” and ordered counsel to respond to the Commonwealth’s motion by May 5, 2014.

i. Counsel lied to Appellant, representing that he would file an answer to the Commonwealth’s Motion to Modify, and then, inexplicably, never filed one. With no answer on App ellant’s behalf, the Court granted the Commonwealth’s Motion to Modify Sentence in response to a Commonwealth “Motion to Make Rule Absolute.”J. A34014/14

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- j. Counsel failed to object to or preserve the issues raised by Appellant for the first time on appeal.

Appellan t’s brief at 6

- 10.

Appellant’s first two issues go to the weight of the evidence. We find

this challenge waived for failure to raise it before the trial court, a

mandatory requisite to preserve a weight of the evidence challenge for

appellate review. Pa .R.Crim.P. 607; Commonwealth v. McCall
, 911 A.2d

992 (Pa.Super. 2006). The docket bears no notation showing that appellant

filed a post

- sentence motion, and a review of the certified record discloses

no post

- sentence motion filed by appellant raising a we ight of the evidence

challenge. Furthermore, our review of the notes of testimony reveals that

no such motion was made orally after the verdict was rendered. Therefore,

this issue has been waived.

To the extent that appellant presents a sufficiency of the evidence

claim, we find that no relief is due. There is sufficient evidence to sustain a

conviction when the evidence admitted at trial, and all reasonable inferences

drawn therefrom, viewed in the light most favorable to the Commonwealth

as verdict

- w inner, are sufficient to enable the fact

- finder to conclude that

the Commonwealth established all of the elements of the offense beyond a

reasonable doubt. Commonwealth v. Markman , 916 A.2d 586, 597 (Pa.

2007). The Commonwealth may sustain its burden “by means of wholly

circumstantial evidence.” Id. at 598. Further, we note that the entire trialJ. A34014/14

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-

record is evaluated and all evidence received against the defendant is

considered, being cognizant that the trier of fact is free to believe all, part,

or none of the evidence. Id.

A person commits criminal mischief when he “intentionally damages

real or personal property of another[.]” 18 Pa.C.S.A. § 3304(a)(5). This

court has noted that pecuniary damage is not an element of Section 3304;

rather, it is a par t of the grading of the offense. Hence, pecuniary loss need

not be shown where criminal mischief is charged as a summary offense.

Appellant argues that he was not the person involved in the

commission of the crime. The trial court, however, concluded he was guilty

of criminal mischief based on the surveillance video of the person damaging

the victim’s car. The court had an opportunity to witness appellant’s distinct

walk and compare his facial profile on the witness stand to the profile on the

video. Additionally, Steif identified appellant as the person in the

surveillance video. The evidence, viewed in the light most favorable to the

Commonwealth, was sufficient to sustain appellant’s conviction for criminal

mischief beyond a reasonable doubt.

App ellant next argues that he was denied a constitutional right to a

trial by jury. However, there is no right to a trial by jury. See

Commonwealth v. McMullen , 961 A.2d 842 (Pa. 2008). “The right to a

jury trial under the Sixth Amendment to the United Sta tes Constitution and

Article 1, Sections 6, 9 of the Pennsylvania Constitution applies when aJ. A34014/14

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criminal defendant faces a sentence of imprisonment exceeding six months.”

Id. Appellant was charged with a summary offense, the maximum

punishment for which is 90 days’ incarceration. Therefore, we reject

appellant’s argument.

We likewise find no merit to appellant’s unfounded claim that the

district attorney committed gross prosecutorial misconduct when he

amended the charge from a misdemeanor to a summary c harge.

Appellant’s sixth issue avers that the surveillance video should not

have been admitted into evidence as it was not properly authenticated. We

agree with the Commonwealth that this claim is waived for failure to object

to the video’s admission d uring trial. Pa.R.A.P. 302(a); Commonwealth v.

Blassingale , 581 A.2d 183, 191 (Pa.Super. 1990).

In his seventh claim, appellant argues that the sentence imposed was

illegal and not supported by evidence. (Appellant’s brief at 59.) In the

context of cri minal proceedings, an order of “restitution is not simply an

award of damages, but, rather, a sentence.” Commonwealth v. C.L. , 963

A.2d 489, 494 (Pa.Super. 2008) (citation omitted). An appeal from an order

of restitution based upon a claim that a restitu tion order is unsupported by

the record challenges the legality, rather than the discretionary aspects, of

sentencing. Commonwealth v. Redman , 864 A.2d 566, 569 (Pa.Super.

2004), appeal denied , 875 A.2d 1074 (Pa. 2005). “[T]he determination as

to whether the trial court imposed an illegal sentence is a question of law;J. A34014/14

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-

our standard of review in cases dealing with questions of law is plenary.”

Commonwealth v. Hughes , 986 A.2d 159, 160 (Pa.Super. 2009) (citation

omitted).

Both the Sentencing Code and Crim es Code contain provisions that

govern the imposition of restitution. The Sentencing Code provides that “the

court shall order the defendant to compensate the victim of his criminal

conduct for the damage or injury that he sustained.” 42 Pa.C.S.A.

§ 9721 (c). The statute governing restitution for injuries to person or

property, 18 Pa.C.S.A. § 1106, provides that:

(a) General rule.

-- Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value subs tantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

. . . .
(2) At t he time of sentencing the court

shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the victim, the victim’s request for restitution as
p resented to the district attorney in accordance with paragraph (4) andJ. A34014/14

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- such other matters as it deems appropriate.

. . . .
(4) (i) It shall be the

responsibility of the district attorneys of the respective counties to make a recommendation to the court a t or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.

18 Pa.C.S.A. § 1106.

When fashioning an order of re stitution, the lower court must ensure that the record contains the factual basis for the appropriate amount of restitution. Commonwealth v. Pleger , 934 A.2d 715, 720 (Pa.Super.2007). The dollar value of the injury suffered by the victim as a result of t he crime assists the court in calculating the appropriate amount of restitution. Id. The amount of the restitution award may not be excessive or speculative. Commonwealth v. Rush , 909 A.2d 805, 810 (Pa.Super.2006), reargument denied

.

Commonwealth v. At anasio , 997 A.2d 1181, 1183 (Pa.Super. 2010).

According to appellant, the trial court ordered him to pay $1,598.22

based on an “unsigned repair estimate the victim provided to the

prosecution.” (Appellant’s brief at 60.) Appellant argues there was no

e vidence as to the extent of the June 15 th damage to the vehicle, and heJ. A34014/14

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-

points out that the victim acknowledged this was not the first time the

vehicle was vandalized; thus, appellant claims there was no representation

that this estimate provided only cove red damage done to the vehicle on

June 15 th . ( Id. at 60

- 63.)

We disagree. It is clear from the sentencing hearing transcripts that

the court’s sentence of restitution was not speculative and finds support in

the record. The figure was obtained by the t estimony of the victim, and

despite appellant’s claim to the contrary, we glean nothing speculative about

the trial court’s calculation. Appellant fails to proffer any authority which

would preclude the trial court from relying solely on the victim’s calc ulation

of loss where, as in the case before us, the trial court deemed such

testimony credible. Accordingly, we conclude that the trial court did not err

in the imposition of restitution.

Finally, appellant raises numerous issues regarding the ineffecti ve

assistance of trial counsel. 2 However, appellant did not preserve for

purposes of Pa.R.A.P. 302(a) the claims of ineffective assistance of counsel

by raising the claims in the court below. Thus, these issues have been

waived.

2 We find that appellant’s claim concerning whether the trial co urt violated Pa.R.Crim.P. 602 when it modified the restitution amount without his knowledge or an opportunity to be heard is belied by the record. It is also actually raised as a claim of ineffective assistance of counsel; in support of this issue, appell ant avers his attorney did not inform him of the matter and “lied” to him. (Appellant’s brief at 64

- 65.)J. A34014/14

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-

Furthermore, ineffective assistance of counsel claims are generally

deferred to collateral review proceedings, with the exception of certain

circumstances not present in the instant case. See Commonwealth v.

Arrington , 86 A.3d 831 (Pa. 2014). To be eligible for such relief unde r the

Post Conviction Relief Act (“PCRA”), a petitioner must be currently serving a

sentence of imprisonment, probation, or parole. 42 Pa.C.S.A.

§ 9543(a)(1)(i). As appellant is appealing a summary conviction, for which

he was sentenced to pay restitutio n, we find that he is not eligible for relief

under the PCRA. In Commonwealth v. Straub , 936 A.2d 1081 (Pa.Super.

2007), appeal denied , 963 A.2d 470 (Pa. 2009), we held that a defendant

convicted of a summary offense and not incarcerated or placed on prob ation

is not entitled to litigate claims of ineffective assistance of counsel on direct

appeal even though he may not be eligible for PCRA relief. Id. at 1083. The

Straub court stated that:

In light of [ Commonwealth v. O’Berg , 880 A.2d 597 (Pa. 2005)] ma jority’s express disapproval of the jurisprudential “short sentence” exception to [ Commonwealth v. Grant , 813 A.2d 726 (Pa. 2002)] and particularly in light of Justice Castille’s cogent, thoughtful and well

- reasoned concurring opinion in O’Berg , we conclud e that, in the case at bar, Appellant’s claims of ineffective assistance of counsel may not be reviewed on direct appeal before this Court.

Id. at 1083

- 1084. Consequently, the law does not provide appellant with an

avenue to pursue his ineffective assist ance of summary trial counsel claims.J. A34014/14

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-

See Commonwealth v. Reigel , 75 A.2d 1284, 1288

- 1289 (Pa.Super.

2013).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/20/2015