Com. v. Robinson, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JENNIFER M. ROBINSON :
:
Appellant : No. 639 MDA 2018
Appeal from the Judgment of Sentence Entered February 27, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006740-2016
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 21, 2019
Jennifer Robinson appeals from the judgment of sentence of twelve
months of probation, a fine of $500, and restitution in the amount of $1,500,
imposed following her conviction of two counts of third-degree misdemeanor
criminal mischief. We affirm.
The pertinent facts of the case are set forth as follows. On September
11, 2016, Nacole Moore arrived at her home at approximately 8:30 p.m., and
departed shortly thereafter for a friend’s house. When she returned home not
long after midnight, she discovered that in her absence, someone had spray-
painted obscenities on her carport and garage door using tan and blue paint.
Ms. Moore called the police to report the vandalism, and Officer Jesse Foltz of
the Penbrook Police Department responded.
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Officer Foltz knew of ongoing ill will between Ms. Moore and Appellant,
as he had been called to their respective homes for prior altercations. After
speaking with Ms. Moore, Officer Foltz proceeded to Appellant’s nearby
residence. During the course of his conversation with Appellant, Officer Foltz
noticed that Appellant had blue spray paint on her hands and fingers, which
the Officer believed was the same hue of blue paint that had been used to
deface Ms. Moore’s property.1 Appellant’s arms and legs contained splatters
of tan spray paint consistent with the other paint color used to vandalize Ms.
Moore’s property. When Officer Foltz confronted Appellant with his suspicion
that she spray-painted the graffiti on Ms. Moore’s carport and garage, she
became extremely agitated and began yelling and screaming at him. After
asking Appellant to calm down, Officer Foltz proceeded to his car to retrieve a
camera. Upon returning, he observed that Appellant had attempted to remove
some of the paint from her hands and arms. Officer Foltz managed to take
one photograph before Appellant refused to allow him to take more.
Appellant was charged with, inter alia, two counts of criminal mischief
pursuant to 18 Pa.C.S. § 3304(a)(4), graded as misdemeanors in the third
degree. Following a jury trial on February 14, 2018, she was convicted of
both counts, and sentenced as aforesaid. Appellant filed a timely post-
____________________________________________
1The record reflects that the garage was actually a double garage. The graffiti
was spray-painted on both the door owned by Ms. Moore and the door of her
neighbor, Jessica Jackson.
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sentence motion, the Commonwealth filed a response, and the court denied
the motion. Appellant filed a timely notice of appeal, complied with the trial
court’s Pa.R.A.P. 1925(b) order, and the trial court issued its Rule 1925(a)
opinion.
Appellant raises a single issue on appeal: “[w]as the evidence at trial
insufficient to prove beyond a reasonable doubt that the [A]ppellant was guilty
of criminal mischief, a misdemeanor of the third degree, where the
Commonwealth failed to show any monetary value of pecuniary damages[?]”
Appellant’s brief at iv.
In reviewing a sufficiency of the evidence claim, our standard of review
is well established:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim, the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Stahl, 175 A.3d 301, 303-04 (Pa.Super. 2017) (citing
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.Super. 2000)).
Appellant was charged with violating 18 Pa.C.S. § 3304(a)(4), which
provides:
(a) Offense defined. A person is guilty of criminal mischief if
he:
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....
(4) intentionally defaces or otherwise damages tangible public
property or tangible property of another with graffiti by use of any
aerosol spray-paint can, broad-tipped indelible marker or similar
marking device;
....
(b) Grading. Criminal mischief is a felony of the third degree
if the actor intentionally causes pecuniary loss in excess of $5,000,
or a substantial interruption or impairment of public
communication, transportation, supply of water, gas or power, or
other public service. It is a misdemeanor of the second degree if
the actor intentionally causes pecuniary loss in excess of $1,000,
or a misdemeanor of the third degree if he intentionally or
recklessly causes pecuniary loss in excess of $500 or
causes a loss in excess of $150 for a violation of subsection
(a)(4). Otherwise criminal mischief is a summary offense.
18 Pa.C.S. § 3304(a) and (b) (emphasis added).
Appellant maintains that the Commonwealth never produced testimony,
a bill, a repair estimate, or any other form of evidence that detailed the precise
amount of damages sustained by Ms. Moore. Thus, Appellant contends, the
Commonwealth did not meet its burden of proving that the pecuniary damages
involved met the threshold for grading as a third-degree misdemeanor. In
support of her claim, Appellant cites Commonwealth v. Poplawski, 158
A.3d 671 (Pa.Super. 2017), where this Court determined that the sentence of
restitution was not supported by the record, as there was no evidence showing
a direct causal connection between the crime and the loss.
According to the Commonwealth, the record belies Appellant’s
contention. It directs our attention to Officer Foltz’s testimony, based on his
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experience with vandalism as a member of the Penbrook Police Department
for more than seven years, that “it’s usually fairly expensive” to remove spray
paint from surfaces. N.T. Jury Trial, 2/14/18, at 26. He estimated that the
property damage amounted to $500. The Commonwealth also relies upon
Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.Super. 1997), for the
proposition that its evidentiary burden was satisfied by “proving the crime’s
elements with evidence which is entirely circumstantial and the trier of fact,
who determines credibility of witnesses and the weight to give the evidence
produced, is free to believe all, part or none of the evidence.”
Appellant’s reliance upon Poplawski is misplaced. Appellant is not
challenging the restitution imposed as part of the sentence herein. Her sole
claim on appeal is the sufficiency of the evidence of pecuniary loss for
purposes of the grading of the offenses. Furthermore, contrary to Appellant’s
representation, there is evidence in the record of the value of the damages
sustained. The record contains photographs depicting the damage to the
carport and the garage doors caused by the graffiti. In addition, Officer Foltz
estimated the damage to the property to be $500.
In order for the offenses to be graded as third-degree misdemeanor, the
damages only had to exceed $150 at each count. See 18 Pa.C.S. § 3304
(a)(4) and (b) (making intentional defacement of another’s property with
graffiti by use of spray-paint a third-degree misdemeanor if it causes a loss in
excess of $150). The jury observed the photographs of the graffiti and was
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free to credit or disregard the officer’s estimate of removing it. It was not
unreasonable to infer from this evidence that the damage sustained equaled
or exceeded $150 at each count.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we find the evidence legally sufficient to support the
conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2019
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