Com. v. Munno, M. ( 2016 )

J-S65010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCO DOMONIC MUNNO
Appellant No. 1561 WDA 2015
Appeal from the Judgment of Sentence July 9, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016539-2014
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2016
Marco Domonic Munno appeals from his judgment of sentence,
entered in the Court of Common Pleas of Allegheny County, after he was
found guilty of retail theft.1 After careful review, we affirm in part, vacate in
part and remand for resentencing.
Munno was charged with one count each of receiving stolen property
(RSP) and retail theft. The RSP charge was withdrawn at Munno’s
preliminary hearing and he waived his right to a jury trial on the charge of
retail theft.
The trial court recited the underlying facts of the case as follows:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3929(a)(1).
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[O]n July 9, 2015, Jason Belczyk, the store manager of the Moon
Township Walgreens, watched a man approach the exit of
Walgreens. Mr. Belczyk identified the man who was approaching
the exit of Walgreens as [Munno]. This Court finds Mr. Belczyk’s
identification of [Munno] to be credible. [Munno] was carrying a
blue basket filled with Rogaine. As [Munno] approached the
gates, the store alarms were activated, as were the “spider”
alarms on the packages. When the alarms sounded, [Munno]
ran out of the store. Mr. Belczyk followed [Munno] out of the
store, and observed [Munno] jump into a running vehicle that
was backed into a parking space. Mr. Belczyk then obtained the
license plate number for the vehicle and contacted the Moon
Township Police Department. [Munno] did not pay for the
Rogaine prior to exiting the store, nor did he have permission to
take the merchandise out of the store.
Trial Court Opinion, at 3/1/16, 2-3.
At a bench trial, before the Honorable Thomas E. Flaherty, the
Commonwealth presented store video surveillance of the incident. Belczyk
testified that the video depicted the entrance of the Moon Township
Walgreen’s and also showed Munno exiting the store with a basket full of
unpaid products. In the video, the store alarm sounds as Munno begins to
exit and, then, eventually runs out of the store.
At the conclusion of the non-jury trial, the court found Munno guilty of
retail theft. On July 9, 2015, Munno was sentenced to six months of
probation and ordered, as a condition of his probation, to pay $800.00 in
restitution to Walgreen’s. Munno filed post-sentence motions challenging
the court’s restitution sentence. The court denied the motions and this
timely appeal follows.
On appeal, Munno presents the following issues for our consideration:
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(1) Did the trial court impose an illegal sentence by ordering
Mr. Munno to pay an amount of restitution which was
speculative and not supported by the record?
(2) Was the evidence insufficient[2] to support Mr. Munno’s
conviction for retail theft where the only evidence
identifying him as the perpetrator was an in-court
identification by a witness who had an extremely minimal
opportunity to observe the perpetrator during the incident
and where the trial court conceded at the time it rendered
its verdict of guilty that “there could be reasonable doubt
as to whether [the perpetrator] was Mr. Munno?”
Pursuant to our Commonwealth’s restitution statute:
(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.
(b) Condition of probation or parole. — Whenever
restitution has been ordered pursuant to subsection (a) and the
offender has been placed on probation or parole, his compliance
with such order may be made a condition of such probation or
parole.
(c) Mandatory restitution.
* * *
____________________________________________
2
In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.
Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).
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(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)3 and such other matters as it deems
appropriate.
18 Pa.C.S. § 1106 (emphasis added). The amount of a restitution order is
limited by the loss or damages sustained as a direct result of defendant's
criminal conduct and by the amount supported by the record.
Commonwealth v. Dohner,, 725 A.2d 822 (Pa. Super. 1999).
Instantly, the trial court urges this court4 to remand the matter solely
on the issue of the amount of restitution imposed upon Munno based upon
____________________________________________
3
Pursuant to section 1106(c)(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.
(ii) Where the district attorney has solicited information from
the victims as provided in subparagraph (i) and has received no
response, the district attorney shall, based on other available
information, make a recommendation to the court for restitution.
18 Pa.C.S. § 1106(c)(4)(i), (ii).
4
The Commonwealth concurs with the trial court that the case should be
remanded for resentencing on the proper amount of restitution. See
Commonwealth’s Brief, at 5.
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the fact that the Commonwealth did not present any documentation to
support the $800.00 order of restitution. We agree.
From the record, it appears that the restitution amount was based
solely upon Belczyk’s testimony as set forth in the criminal
complaint/affidavit of probable cause. See Police Criminal Complaint,
11/18/14, at 2 (“actor . . . intentionally retained . . . property, namely 16
boxes of ROGAINE valued at $50.00 per box for a total of $800.00[.]”);
Affidavit of Probable Cause, 11/18/14, at 2 (“Jason [Belczyk] advised me
that the suspect ran out of the store with about 16 boxes of ROGAINE
valued at $50.00 each for a total theft amount of $800.00.”). Since
restitution is a sentence, the amount ordered must be supported by the
record and may not be speculative or excessive. Commonwealth v. Reed,
543 A.2d 587, 589 (Pa. Super. 1988). Accordingly, without any documented
evidence to support the ordered restitution amount, it is in direct
contravention of sections 1106(2)(i) and 1106(4) and established case law.
See Commonwealth v. Reed, 543 A.2d 587, 589 (Pa. Super. 1988).
Thus, we reverse the restitution portion of Munno’s sentence and remand
the matter for a new sentencing hearing limited to the issue of the proper
amount of restitution to be ordered.
With regard to Munno’s argument that the evidence was insufficient to
find him guilty of retail theft,5 we affirm on the basis of the opinion authored
____________________________________________
5
The offense of retail theft is defined as:
(Footnote Continued Next Page)
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by Judge Flaherty. As noted in Judge Flaherty’s decision, the store manager,
whose testimony the court found credible, had an unobstructed view of
Munno from a distance of 30 feet and observed Munno as he exited and
ultimately fled Walgreen’s with a basket full of unpaid Rogaine as store
alarms sounded. See Commonwealth v. Dent, 837 A.2d 571 (Pa. Super.
2003) (where defendant tripped electronic article surveillance alarm as she
left drugstore, store manager's search of defendant’s purse uncovered
unpaid set of fingernails with alarm code sticker, defendant fled store when
manager threatened to call police, and store manager identified defendant
in court, there was sufficient evidence to uphold retail theft conviction).
Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this decision.6 Jurisdiction
relinquished.
_______________________
(Footnote Continued)
(a) 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).
6
We affirm the retail theft conviction and remand solely for resentencing on
restitution as a condition of Munno’s probation.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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Circulated 09/01/2016 09:21 AM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLV ANJA, CC No.: 16539-2014
Superior Court No: 1561 WDA 2015
v.
MARCO DOMENIC MUNNO.
Defendant.
OPINION
FLAHERTY, J. March I. 2016
Marco Domenic Munno ("Defendant") appeals from the Judgment of Sentence imposed
on July 9, 2015.
On November 18, 2014, Defendant was charged with one count of receiving stolen
property ( 18 Pa.C.S.A. §3925(a)) and one count of retail theft ( 18 Pa.CS.A. §3929(a)( I)) for
offenses that occurred on November 8, 2014. The charge of receiving stolen property was
withdrawn al Defendant's preliminary hearing and the sole charge of retail theft was waived to
the Court of Common Pleas.
On July 9, 2015, Defendant waived his right to a trial by jury and the matter proceeded to
a non-jury trial. At the conclusion of all of the evidence, this Court found Defendant guilty of
the sole count of retail theft. Defendant waived his right to a pre-sentence report and Defendant
was sentenced to a period of six (6) months probation and ordered to pay restitution to
Walgreen's in the amount of eight hundred dollars ($800.00).
On July 20, 2015, Defendant filed a Motion to Reconsider Sentence wherein he
challenged this Court's order of sentence with regard to the amount of restitution. On September
8, 2015, this Court denied his Motion. On October 8, 2015, Defendant filed his Notice of
Appeal. Via Order of Court dated October 13, 2015, Counsel for Def cndant was directed to file
a Concise Statement of Matters Complained of on Appeal. On December 3, 2015, Counsel for
Defendant filed his Concise Statement wherein he raised the following issues;
I. The evidence was insufficient to prove, beyond a reasonable doubt, that Defendant
was the individual who committed the offense for which he was charged.
2. The Commonwealth foiled to satisfy its burden of proving the restitution amount as it
presented no evidence of record regarding restitution.
3. The trial court erred when it denied Defendant's post-sentence motion to reconsider
sentence and requesting a hearing to determine the restitution amount, as a hearing
was required to determine the full amount of restitution under an adversarial system
with considerations of both federal and state due process.
4. The trial court erred when it sentenced Defendant to pay $800 in restitution as the
record does not reflect facts making up the restitution amount, the restitution amount
was speculative, and the trial court did not state on the record the facts the
Commonwealth put into evidence proving that such a restitution amount was proper.
The facts as found by this Court arc as follows: on July 9, 2015, Jason Belczyk, the store
manager of the Moon Township Walgrcens, watched a man approach the exit of Walgrecns.
(Trp. p. 9). Mr. Belczyk identified the man who was approaching the exit of Walgreens as
Defendant. (Trp. p. 11 ). This Court finds Mr. Belczyk's identification of Defendant to be
credible. Defendant was carrying a blue basket filled with Rogaine. (Trp. p. 9). As Defendant
approached the gates. the store alarms were activated, as were the "spider" alarms on the
packages. (Trp. p. 9). When the alarms sounded, Defendant ran out of the store. (Trp, p. 9).
Mr. Belczyk followed Def endant out of the store, and observed Defendant jump into a running
vehicle that was backed into a parking space. (Trp. p. JO). Mr. Belczyk then obtained the
license plate number for the vehicle and contacted the Moon Township Police Department. (Trp.
2
p. 10). Defendant did not pay for the Rogainc prior to exiting the store, nor did he have
permission to take the merchandise out of the store. (Trp. p, 11 ).
At trial, the Commonwealth presented video surveillance of the incident that was taken
from Walgreen's. Mr. Bclczyk testified that the video depicted the entrance of Walgreen's.
(Trp. p. 13). This video depicts Defendant exiting the store with a basket full of product. (Trp.
p. 13). As Defendant approaches the exit, the alarms sound and Defendant runs out of the store.
(Trp. p. 13).
Defendant's first issue on appeal is that the evidence was insufficient to prove beyond a
reasonable doubt that Def endant is the person who committed U1e offense of retail theft. Retail
theft, as charged in this case, is defined in 18 Pa.C.S.A. §3929(a)( I) as follows:
a person is guilty of a retail theft if he takes possession of, carries away, transfers
or causes to be carried away or transferred, any merchandise displayed, held,
stored or off ercd 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.A. §3929(a)(( ). As stated above, Defendant was observed with a basket full of
Rogaine exiting Walgreen's without paying for the merchandise or having any other permission
lo remove the product from the store. Defendant then fled with the Rogaine when the alarms
sounded. Defendant's identity was credibly established by the testimony of Mr. Belczyk, who
was able to identify Defendant in court. As such, the Commonwealth established beyond a
reasonable doubt that Defendant is the person who committed the November 8, 2014 retail theft
at Walgreen's in Moon Township.
Defendant's three remaining issues revolve around the restitution amount set by this
Court. After sentencing, the Commonwealth presented this Court with a proposed restitution
order in the amount of $800.00. At that time, it was represented by the Commonwealth that
3
. '
there were 16 boxes of Rogaine stolen by Defendant and each had a value of $50.00. It is the
recollection of this Court that the Commonwealth presented an invoice or inventory report from
Walgrccns that substantiated this amount. Thus. this Court accepted the Commonwealth's
restitution order. At that time, Defendant indicated that he did not believe there were sixteen
( 16) boxes of Rogaine anti challenged the amount of restitution. This Court thereafter set the
restitution at $800.00. In his Post-Sentence Motion, Defendant requested a hearing on the issue
of restitution. Believing that the Commonwealth presented evidence to substantiate the amount
of $800.00 in restitution, this Court denied this request.
Upon review of the transcripts and court record in this matter, it does not appear that
Commonwealth's inventory report or other invoice that substantiated the quantity or amount of
Rogaine that was stolen was made part of the record. As such, this Court requests that this
matter be remanded for a hearing limited to the issue of the amount of restitution.
For the foregoing reasons, this Court's July 9, 2015 finding of guilt should be affirmed,
but the matter should be remanded for a hearing on the issue of restitution.
BY THE COURT,
~C,~
~homas E.Flahcrty, Judge
Court of Common Pleas
4
Commonwealth of Pennsylvania IN THE COURT OF c'6MMON PLEAS OF ALLEGHENY
V, COUNTY, PENNSYLVANIA
Marco Oomonlc Munno
CRIMINAL DIVISION
:DOCKET NO: CP-02-CR-0016539-2014
:DATE OF ARREST: 11/25/2014
OTN: G 696157-0
. SID: 306-72-62·3
(DOB: 12/12/1981
ORDER OF SENTENCE
AND NOW, this 9th day of July, 2015, the defendant having been convicted in the above-captioned
case is hereby sentenced by this Court as follows. The defendant is to pay all applicable fees and costs
unless otherwise noted below:
Count 1 - 18 § 3929 §§ A1 - Retail Theft-Take Mdse (M1}
To be placed on Probation - County Regular Probation· for a minimum period of 6 Month(s} and a maximum period
of 6 Month(s) to be supervised by Allegheny County Probation.
The followlng conditions are imposed:
Restitution: Defendant is to pay restitution fn the amount of $800 to Walgreen's
Contact - No Contact: Defendant is to have no contact with the Walgreen's on University Blvd.
This sentence shall commence on 07/0912015.
Count 99,999 • 18 § 3925 §§A-Receiving Stolen Property (M1)
Offense Disposition: Disposed at Lower Court
BY THE COURT:
07/09/2015 ``~
Judge Thomas Flaherty
Printed 07/0912015 1t57:57AM
CPCMS2066
APPENDIX C