Com. v. Alvarado, T. ( 2021 )

J-A14014-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAMEKA LYNN ALVARADO :
:
Appellant : No. 1319 WDA 2020
Appeal from the Judgment of Sentence Entered November 23, 2020
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000796-2018
BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: JULY 14, 2021
Tameka Lynn Alvarado (Appellant) appeals from the judgment of
sentence imposed after the trial court convicted her of misdemeanor criminal
mischief – tampering with property, 18 Pa.C.S.A. § 3304(a)(2). We affirm.
The trial court recited the case history as follows:
On July 21, 2018, Mackenzie Evans was looking through the
upstairs window in the bedroom of her residence located at 617
Oak Street, New Castle, Lawrence County, Pennsylvania, when
she observed [Appellant] outside. Ms. Evans resided at that
location with Michael Cox, who fathered children with both Ms.
Evans and [Appellant]. At that time, [Appellant] was outside of
the residence to retrieve her child despite prior plans for her and
Mr. Cox to exchange custody of the child at East Side Mini Mart
convenience store. [Appellant] approached the residence and
knocked on the door belonging to the downstairs apartment,
which was not occupied by Ms. Evans or Mr. Cox. She then
knocked on the door for Ms. Evans’ residence, but no one let her
inside. [Appellant] went to Ms. Evans’ vehicle, a 2008 Hyundai
Sonata, and started kicking it. Mr. Cox then chased [Appellant]
away from the vehicle. Ms. Evans recorded a video on her cell
phone showing a portion of those events. The video depicts
J-A14014-21
[Appellant] make a kicking motion in the area of the rear
passenger side door of the vehicle, then she walks over to the
front passenger side door and leans in towards the window. The
video subsequently shows Mr. Cox chasing her away from the
vehicle.
Patrolman James Paglia of the New Castle Police
Department was dispatched to investigate the disturbance at the
residence. Upon his arrival, Officer Paglia spoke with the victim
Mackenzie Evans, who stated [Appellant] damaged her vehicle by
punching or kicking it as a result of [Appellant] being upset while
retrieving her son from his father’s custody due to another female
being present. Officer Paglia observed the vehicle parked in front
of the residence and there was some damage to most of the
panels on the vehicle. Ms. Evans received an estimate from Nick’s
Auto Body indicating there was damage to the rear door in the
amount of $375.00 and damage to the rear quarter panel in the
amount of $312.50.
On November 1, 2018, the Commonwealth filed an
Information charging [Appellant] with Criminal Mischief -
Tampering with Property. [Appellant] filed a Petition for Writ of
Habeas Corpus on August 26, 2019, and a hearing was scheduled
for September 10, 2019. However, that hearing was continued
on September 10, 2019, and rescheduled for October 11, 2019.
The hearing was continued again on October 3, 2019, causing it
to be scheduled for and held on December 3, 2019. The Honorable
J. Craig Cox issued an order and opinion dated December 6, 2019,
which granted [Appellant’s] Petition for Writ of Habeas Corpus to
the extent the Information was amended to reflect the charge of
Criminal Mischief was graded as a Misdemeanor of the third
degree. This matter proceeded to a non-jury trial on July 17,
2020. At the conclusion of the trial, [Appellant] was convicted on
the charge of Criminal Mischief. She was then sentenced on
November 23, 2020, to serve 1 year of probation under the
supervision of the Adult Probation Office of Lawrence County and
[Appellant] was ordered to pay restitution in the amount of
$687.50.
[Appellant] filed a timely Notice of Appeal and Concise
Statement of Errors Complained of on Appeal contending this
court erred when it denied [Appellant’s] Motion for Judgment of
Acquittal when the evidence presented was insufficient as a
matter of law to demonstrate guilt beyond a reasonable doubt with
-2-
J-A14014-21
respect to the charge of Criminal Mischief-Tampering with
Property.
Trial Court Opinion, 2/9/21, at 1-4 (footnote omitted).
As she did with the trial court, Appellant argues on appeal that the
evidence was insufficient to support her conviction. She presents the following
question:
1. Did the Trial Court err as a matter of law when it denied
[Appellant’s] Motion for Judgment of Acquittal when the
evidence presented was insufficient as a matter of law to
demonstrate guilt beyond a reasonable doubt with respect to
the charge of Criminal Mischief-Tamper with Property, a
misdemeanor of the third degree.
Appellant’s Brief at 4.
When reviewing a challenge to the sufficiency of the evidence, we
consider whether, when viewing the evidence admitted at trial in the light
most favorable to the verdict winner, the evidence was sufficient to enable the
factfinder to find all elements of the offense established beyond a reasonable
doubt. Commonwealth v. Kearney, 225 A.3d 590, 594 (Pa. Super. 2019)
(citation omitted). “Any doubt about the defendant’s guilt is to be resolved
by the fact finder unless the evidence is so weak and inconclusive that as a
matter of law, no probability of fact can be drawn from the combined
circumstances.” Id. “The Commonwealth may sustain its burden by means
of wholly circumstantial evidence.” Id. (citation omitted).
Instantly, Appellant concedes she committed criminal mischief, but
argues she “should have been found guilty of a summary offense.” Appellant’s
-3-
J-A14014-21
Brief at 9, 10. She states the “sole question being raised is the damage to
the vehicle attributable to Appellant,” and claims “[e]ven in a light most
favorable to the Commonwealth, [the] testimony cannot be considered
sufficient to establish that Appellant caused damage to the vehicle in excess
of five-hundred dollars.” Id. at 12, 14.1 We disagree.
Appellant was convicted under 18 Pa.C.S.A. § 3304(a)(2), which defines
criminal mischief as intentional or reckless tampering “with tangible property
of another so as to endanger person or property.” Relevant to Appellant’s
argument:
Criminal mischief 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. Otherwise
criminal mischief is a summary offense.
18 Pa.C.S.A. § 3304.
The trial court and Appellant both rely on Commonwealth v. Battiato,
619 A.2d 359 (Pa. Super. 1993) (abrogated on unrelated grounds) (citing In
re Gillen, 344 A.2d 706, 708 (Pa. Super. 1975)). This Court in Battiato
stated:
Where criminal mischief is charged as a felony or misdemeanor,
the monetary value of the damage caused by the defendant is an
essential element of the offense. See: In re Gillen, 236 Pa.
Super. 521, 525, 344 A.2d 706, 708 (1975). However, proof of
pecuniary loss is not required under 18 Pa.C.S. § 3304,
when criminal mischief is charged as a summary offense.
____________________________________________
1 The Commonwealth has not filed a response brief.
-4-
J-A14014-21
Id. at 363 (citation omitted).
Appellant does not dispute that when criminal mischief is charged as a
felony or misdemeanor, the monetary value of the damage caused by the
defendant is an essential element of the offense. See Commonwealth v.
Kearney, 225 A.3d at 595. Rather, she asserts the evidence was insufficient
to establish she caused damage to Ms. Evans’ vehicle in excess of $500.
Appellant argues:
The only truly credible evidence presented at the trial was the
brief video taken by Ms. Evans. This video established that
[Appellant] made a kicking motion at the vehicle in a singular
area. The damage associated with the action in the video would
be for either the back door of the vehicle for damage of three
hundred and seventy-five dollars ($375.00) or to the rear quarter
panel of the vehicle for damage of three hundred and twelve
dollars and fifty cents. ($312.50). The evidence, even viewed in a
light most favorable to the Commonwealth, fails to establish that
[Appellant] was responsible for damage to both. The record is
devoid of any additional credible evidence. Even if it were
determined that the damage was the higher of the two estimates,
the result would be that the charge be a summary offense.
Appellant’s Brief at 12.
Appellant claims Ms. Evans’ testimony was “weak and inconclusive.” Id.
at 13. She also states Mr. Cox was “the one individual most competent to
testify [about] exactly what damage may have been done by [Appellant], but
because the Commonwealth “failed to produce the testimony of Mr. Cox, [the
trial court] relied on the testimony of Ms. Evans.” Id. She maintains that the
court’s reliance was “unwarranted given the self-contradictory nature of [Ms.
Evans’] observations of the whereabouts of Mr. Cox and her complete
-5-
J-A14014-21
disinterest in the situation.” Id. Appellant states Ms. Evans “did not take
more than a 15 second video of an event that she alleges occurred for five or
six minutes,” and concludes that Ms. Evans’ “actions . . . or lack of action,”
lead to the “only rational explanation [] that she did not witness [Appellant]
damaging the vehicle.” Id.
Appellant’s argument lacks merit. The trial court, sitting as factfinder,
stated:
[The video] demonstrated [Appellant] kicked the rear passenger
door area of the vehicle then proceeded to the front passenger
door and leaned in toward the window. The video also shows Mr.
Cox chasing [Appellant] away from the vehicle. The recording
made by Ms. Evans clearly substantiates her rendition of the
events that day. Moreover, Officer Paglia stated he observed
damage to almost all of the panels of the vehicle[.]
Trial Court Opinion, 2/9/21, at 7.
The record supports the trial court’s assessment of the evidence and
belies Appellant’s argument. Pertinently, the parties stipulated to the trial
court taking judicial notice of Judge Cox’s December 6, 2019 order granting
Appellant’s petition for writ of habeas corpus and amending the information.
The Commonwealth specifically requested — and the parties agreed — to the
court taking “judicial notice of the Order of Court of Judge Cox . . . regarding
the damage estimate and the changing of the grading from a felony three to
a misdemeanor three.” N.T., 7/17/20, at 13.
Thereafter, Mackenzie Evans testified about witnessing Appellant
“kicking” Ms. Evans’ car and causing damage. Id. at 14-15. Ms. Evans said
-6-
J-A14014-21
she took video, but “didn’t get the whole thing.” Id. at 17. Contrary to
Appellant’s argument, Ms. Evans expressly stated that her car was not
damaged prior to the incident, and that Appellant “dented all four panels of
the car.” Id. at 20. On cross-examination, Ms. Evans repeated that with
regard to damage, her car “had nothing but what [Appellant] did.” Id. at 26.
Ms. Evans additionally testified that she took her car to Nick’s Auto Body,
where she received a repair estimate for the “dents [Appellant] did to the car.”
Id. The estimate, which the court admitted into evidence without objection
as Commonwealth Exhibit 1, itemized the damage as including $375 for “the
rear door amount,” and $312.50 “for the quarter panel.” Id. at 20-21.
Officer James Paglia of the City of New Castle Police testified to reporting
to the disturbance and speaking with Ms. Evans, who told him:
That [Appellant] damaged her car. That she kicked and punched
it and went the whole way around it and that she had some video
of the incident.
Id. at 30. Officer Paglia stated he “did see some damage to the vehicle,” and
described “dented fenders . . . I don’t know what there was prior to the
incident, but there was some body damage to most of the panels of the
vehicle.” Id. On cross-examination, he testified there “was damage to every
body part of the car. I do recall that. … There was at least one large dent
on every panel of that vehicle.” Id. at 38.
After the testimony of their two witnesses, the Commonwealth rested.
Appellant chose not to testify and did not present any witnesses. The trial
-7-
J-A14014-21
court then stated, “I do feel it’s a credibility issue … I thought [Ms. Evans’]
testimony was straightforward[.]” Id. at 50. The court stated it found
Appellant guilty of criminal mischief, and specifically that “the damages are in
excess of $500 but less than $1,000[.]” Id.
On this record, the evidence was sufficient for the trial court to convict
Appellant of misdemeanor criminal mischief. See Kearney, supra. As the
court did not err, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/14/2021
-8-