Com. v. Moss, C. ( 2021 )

J-A07023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAIG E. MOSS :
:
Appellant : No. 1256 MDA 2020
Appeal from the Judgment of Sentence Entered July 21, 2020
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001036-1996
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED MAY 21, 2021
Appellant, Craig E. Moss, appeals pro se from the July 21, 2020
Judgment of Sentence entered in the Franklin County Court of Common Pleas
following remand from this Court for resentencing on the issue of restitution.
After careful review, we again vacate and remand for resentencing on the
issue of restitution.
The relevant facts and procedural history are as follows. On April 15,
1996, Appellant set fire to the apartment of a person with whom he had had
an argument. The apartment was located in a multi-unit building owned by
Lillian Stevens and contained ten fully-furnished units. The fire caused
extensive damage to the apartment building, as well as to the furniture and
appliances inside, and rendered some units uninhabitable. Penn National
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* Former Justice specially assigned to the Superior Court.
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Insurance insured the building and, in the months following the fire, paid
approximately $66,000 in claims to Ms. Stevens.
The Commonwealth charged Appellant with numerous offenses arising
from the fire. On January 13, 1997, Appellant pleaded nolo contendere at
Docket No. 1036-1996 to one count of Arson Placing Another Person in Danger
of Death or Bodily Injury,1 the victims of which were Lillian Stevens and Robert
Eyler. In exchange for Appellant’s nolo contendere plea, the Commonwealth
nolle prossed one count of Criminal Mischief, and eight counts of Recklessly
Endangering Another Person (“REAP”), as well as two counts of Robbery and
Theft by Unlawful Taking filed at an unrelated docket, Docket No. 776-1996.2
The court deferred sentencing pending preparation of a Pre-Sentence
Investigation (“PSI”) Report.
On March 5, 1997, the trial court sentenced Appellant on the Arson
conviction at Docket No. 1036-1996 to 42 to 240 months of confinement and
ordered Appellant to pay restitution as follows: $10,500 to Lillian Stevens,
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1 18 Pa.C.S. § 3301(a)(1).
2 The Commonwealth charged Appellant with these crimes arising from a
robbery at the Best Western Hotel in Waynesboro.
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$4,305 to Robert Eyler, $66,730.51 to Penn National Insurance,3 and $423.50
to Best Western of Waynesboro.4
This Court affirmed Appellant’s Judgment of Sentence on December 5,
1997. See Commonwealth v. Moss, 706 A.2d 1256 (Pa. Super. 1997)
(unpublished memorandum). Between 1998 and 2005, Appellant filed six Post
Conviction Relief Act (“PCRA”) Petitions, none of which garnered relief.
On September 29, 2017, Appellant filed a Motion to Vacate and Correct
Illegal Sentence seeking modification or vacatur of allegedly illegal aspects of
his sentence of restitution under 18 Pa.C.S. § 1106. The trial court dismissed
the Motion as an untimely PCRA Petition and Appellant appealed. This Court
reversed and remanded for consideration of the merits of Appellant’s Motion.
See Commonwealth v. Moss, 209 A.3d 476 (Pa. Super. 2019) (unpublished
memorandum).
Following a hearing, on April 16, 2019, the trial court again denied
Appellant’s Motion to Vacate and Correct Illegal Sentence, concluding that
Appellant was not entitled to relief. Appellant again appealed and this Court
vacated Appellant’s Judgment of Sentence in part, and remanded for
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3 Appellant’s PSI Report suggested that this restitution award was for
“numerous victims who lived in building” but did not provide any specifics,
such as the victims’ names. PSI Report, 2/24/97, at 2, 12 (unnecessary
capitalization omitted).
4 The court inexplicably ordered restitution to Best Western even though the
charges arising from the robbery at the Best Western were filed at a separate
docket number and were nolle prossed in exchange for Appellant’s guilty plea
to Arson.
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resentencing on the issue of restitution. See Commonwealth v. Moss, 2020
WL 89205, at *1 (Pa. Super. filed January 6, 2020) (unpublished
memorandum). In particular, this Court directed the trial court to (1)
determine the “amount of loss or damage caused, how it should be paid, and
whether the amount the victims were compensated by insurance were
properly excluded from the restitution;” (2) not impose an award of restitution
to Best Western who was not a victim of the crime to which Appellant pleaded
guilty, i.e., Arson; and (3) determine whether the restitution award to Penn
National Insurance was paid to compensate the insurance company for
payments it made for claims arising from the arson and not any of the counts
nolle prossed by the Commonwealth. Id. at 10-11, 14-15, 15 n.3
Following remand, the trial court held a telephonic hearing on June 4,
2020. The Commonwealth presented the testimony of Franklin County Adult
Probation Officer Vonda Shatzer and Lillian Auman.5 It also presented the
court with an email between Penn National Insurance and the Franklin County
District Attorney’s Office purporting to show that Penn National Insurance paid
its insured $66,230.57 as a result of the fire caused by Appellant. At the
conclusion of the hearing, Appellant’s counsel notified the court that Appellant
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5Lillian Stevens now goes by the last name Auman. The Commonwealth also
sought the testimony of Robert Eyler, but he was unavailable.
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wished to make a statement. The court did not permit Appellant to address
it.
On July 21, 2020, the trial court ordered Appellant to pay $10,500 to
Lillian Auman6 and $66,230.57 to Penn National Insurance. The court did not
reimpose restitution in Robert Eyler’s favor because the Commonwealth did
not provide evidence at the hearing to support such an award. The court
noted, however, that Appellant had already paid $4,305 to Mr. Eyler, and,
accordingly, the court directed Appellant “to move the court by way of written
motion including statutory and case law authority as to the manner in which
the amounts previously paid may be returned to [Appellant] or applied to
Lillian Auman or Penn National Insurance.” Trial Ct. Op., 7/21/20, at 8
(unpaginated). Appellant did not file a Post-Sentence Motion.
On August 6, 2020, Appellant’s counsel filed a Motion to Withdraw as
Counsel and Request for a Grazier7 hearing, indicating that Appellant had
informed her that he wished to proceed pro se and had requested that counsel
withdraw her appearance. The court scheduled a hearing on counsel’s Motion
for October 19, 2020.
Meanwhile, on August 19, 2020, Appellant filed numerous pro se
pleadings, including a Notice of Appeal from the July 21, 2020 Judgment of
Sentence, a request to proceed pro se, a “Motion for Return of Money Paid for
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6The court credited Appellant the $3,552.55 that Officer Shatzer testified
Appellant had already paid Ms. Auman.
7 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Restitution that was Vacated,” and a Memorandum of Law in support of the
Motion. The court accepted the Notice of Appeal ordered Appellant to file a
Rule 1925(b) Statement.
The court did not, however, accept Appellant’s “Motion for Return of
Money.” Instead, the court directed that the Motion be returned to the “Clerk
of Courts with no action taken” and instructed Appellant’s counsel to review it
and “thereafter take whatever action deemed necessary.” Order, 8/20/20, at
2 (unpaginated) (emphasis omitted). Counsel did not file a “Motion for Return
of Money” on Appellant’s behalf.
On September 9, 2020, Appellant pro se filed a Rule 1925(b) Statement
as directed by the trial court. On September 28, 2020, the trial court filed a
Rule 1925(a) Opinion.8
Appellant raises the following four issues in his pro se Brief:
1. Did the sentencing court deprive [Appellant] of his due process
rights when it denied [Appellant’s] right of allocution?
2. Did the court violate[] the terms of Appellant[’]s plea
agreement when it imposed restitution to Penn [N]ational
[I]nsurance?
3. Did the court err when it imposed restitution to Lillian Auman?
4. Is Appellant entitled to the return of [] money paid for acts
Appellant has subsequently been acquitted on?
Appellant’s Brief at 2.
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8 On January 12, 2021, this Court remanded this matter to the trial court for
the court to conduct a Grazier hearing. The court held the hearing on January
19, 2021, after which it concluded that Appellant knowingly and intelligently
waived his right to counsel and discharged Appellant’s counsel.
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In his first issue, Appellant claims that the trial court denied him his due
process rights by preventing him from addressing the court at his resentencing
hearing. Id. at 3-4. Appellant asserts that his counsel informed the court
that Appellant wished to make a statement, but that the court refused
Appellant that right, stating “what does he need to speak for[,] he has you.”
Id. at 3. See also N.T., 6/4/20, at 39.
Our rules of criminal procedure provide that “[a]t the time of sentencing,
the judge shall afford the defendant the opportunity to make a statement in
his or her behalf and shall afford counsel for both parties the opportunity to
present information and argument relative to sentencing.” Pa.R.Crim.P.
704(C)(1). See also 42 Pa.C.S. § 9752(a)(2) (providing that the court shall
“[a]fford to the defendant the right to make a statement.”).
“What effect the exercise of the right of allocution might have on the
subjective process of sentencing can never be known with such certainty that
a reviewing court can conclude there was no prejudice in its absence.”
Commonwealth v. Thomas, 553 A.2d 918, 919 (Pa. 1989). “The
significance of allocution lies in its potential to sway the court toward leniency
prior to imposition of sentence. Thus, “[t]he failure to afford a criminal
defendant the right to [allocution] requires remand to allow for allocution prior
to resentencing.” Commonwealth v. Hague, 840 A.2d 1018, 1019 (Pa.
Super. 2003).
However, “in order to preserve a claim of error pertaining to the right of
allocution, the defendant must raise the claim before the trial court at the time
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of sentencing or in a post-sentence motion, or suffer waiver of the claim on
appeal.” Commonwealth v. Hardy, 99 A.3d 577, 579 (Pa. Super. 2014)
(citing Commonwealth v. Jacobs, 900 A.2d 368, 372 (Pa. Super. 2006) (en
banc)).
In its Rule 1925(a) Opinion, the trial court suggested that Appellant has
waived this issue by not raising it at sentencing or in a post-sentence motion.
Op., 9/28/20, at 4. Appellant, in his Brief, disputes this, noting that his
counsel “unequivocally told that court that Appellant wanted to address the
court . . . clearly showing that Appellant wanted to exercise his right.”
Appellant’s Brief at 4. We agree with Appellant that he preserved this issue
by raising it at sentencing.
The Notes of Testimony from the June 4, 2020 hearing reflect that at
the conclusion of the hearing, Appellant’s counsel unequivocally informed the
court that Appellant requested to make a statement. The court replied “[w]hy
would he want to do that when he has you arguing for him.” N.T., 6/4/20, at
39. Although Appellant’s counsel explained to the judge what she thought
Appellant intended to say to the court, the court did not permit Appellant to
address the court himself. Our case law is clear that the failure of the court
to permit Appellant to address it before imposing sentence constitutes
reversible error. We, therefore, vacate that portion of Appellant’s sentence
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imposed by Order dated July 21, 2020, and remand for resentencing in
accordance with this Court’s January 6, 2020 Memorandum.9
Judgment of Sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/21/2021
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9 In light of our disposition of this issue, we need not address the remaining
issues presented in Appellant’s Brief.
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