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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 2014

:

 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 stem from an incident 

that occurred overnight on Saturday, June 15, 2013 
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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 consists 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 shows 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 individuals 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 McLoughlin, 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. 22, 26). 
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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 video 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 animosity 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 anyone 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 either 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, and 
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suffers from leukemia, Archer’s Disease, and high 

blood pressure. (N.T. 35). 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 approximately 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 

DEFENDANT 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, we 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 filed 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 for sentence 

modification. DEFENDANT did not do so. 

Accordingly, we granted the Commonwealth’s Motion 
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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 reasons 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 Grazier1

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).
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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 from 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, along 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 Commonwealth 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 then proceeding to try defendant 
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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 

video 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 without 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 that Appellant 
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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 

Judge 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 weight 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 Cause” 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 Appellant’s behalf, 

the Court granted the 

Commonwealth’s Motion to Modify 

Sentence in response to a 

Commonwealth “Motion to Make 

Rule Absolute.”
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j. Counsel failed to object to or 

preserve the issues raised by 

Appellant for the first time on 

appeal.

Appellant’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 weight 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-winner, 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 trial 
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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 part 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.

Appellant 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 States Constitution and 

Article 1, Sections 6, 9 of the Pennsylvania Constitution applies when a 
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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 charge. 

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 during 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 criminal 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 restitution 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; 
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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 Crimes 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 

substantially 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 the 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 

presented to the district 

attorney in accordance 

with paragraph (4) and 
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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 at 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 restitution, 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 the 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. Atanasio, 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 

evidence as to the extent of the June 15th damage to the vehicle, and he 
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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 covered damage done to the vehicle on 

June 15th. (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 testimony 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 calculation 

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 ineffective 

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 court 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, appellant avers his attorney did not inform him of the matter and 

“lied” to him. (Appellant’s brief at 64-65.)
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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 under 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 restitution, 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 probation 

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)] majority’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 conclude 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 assistance of summary trial counsel claims. 
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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