Com. v. Sparrow, J.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOSEPH GERALD SPARROW, : No. 2016 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, October 1, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0014433-2013
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 10, 2016
Joseph Gerald Sparrow appeals from the judgment of sentence
entered on October 1, 2014, by the Court of Common Pleas of Allegheny
County following his conviction in a bench trial of three counts of theft by
unlawful taking or disposition movable property (theft by unlawful taking).1
We vacate the judgment of sentence and remand for resentencing.
Judge Anthony Mariani set forth the following procedural and factual
history:
This is a direct appeal wherein [appellant]
appeals from the judgment of sentence of October 1,
[2014] which became final upon the denial of
post-sentencing motions on November 12, 2014.
The Honorable Donald E. Machen presided over the
trial, sentencing and post-sentencing matters in this
1
18 Pa.C.S.A. § 3921(a).
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case. This case was assigned to this Court upon
Judge Machen’s retirement.[2]
After a non-jury trial, [appellant] was
convicted of three counts of theft by unlawful taking.
The principal property involved in the thefts [was] a
white gold one-carat diamond ring (hereinafter,
“diamond ring”) and a platinum and diamond
promise ring (hereinafter “promise ring”).
Judge Machen originally sentenced [appellant] to two
consecutive terms of imprisonment of not less than
9 months nor more than 24 months followed by two
years of probation. Judge Machen imposed no
further penalty on the remaining count of conviction.
[Appellant] filed post-sentencing motions and upon
consideration of those motions, Judge Machen
resentenced [appellant] and imposed the same
sentences, this time they were to run concurrently
rather than consecutively. [Appellant] filed a timely
Notice of Appeal. . . .
For purposes of this appeal, the credible facts
presented at trial are succinctly set forth as follows:
On September 22, 2013, Carrie Robinson was at her
townhouse with her boyfriend, [appellant].
Ms. Robinson and [appellant] had been drinking
brandy that evening while watching a football game
on television. During the evening, Ms. Robinson
made hamburgers. She took off the diamond ring,
the promise ring that her grandmother had given her
and another ring while making the hamburgers. She
did not put the rings back on that evening. Around
10:00 p.m., Ms. Robinson went to bed. [Appellant]
continued to watch the football game. At
approximately 2:00 a.m. the next morning,
Ms. Robinson woke up because of the volume of the
television. She went downstairs expecting to find
[appellant]. She was surprised to observe that
[appellant] was not in the residence. As she looked
around, she noticed that her rings were gone. She
immediately sent text messages to [appellant]
2
The case was assigned to the Honorable Anthony Mariani who authored the
Pa.R.A.P. 1925(a) opinion.
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asking him about the rings. [Appellant] did not
immediately respond to her text messages and she
began looking around the townhouse. As she looked
around, she noticed that her wallet was sticking out
of her purse and credit cards were missing from the
wallet. Ms. Robinson called the police. [Appellant]
then sent Ms. Robinson a text message advising her
that he [did not] know what she was talking about.
Police officers responded to the scene. Later that
day, Ms. Robinson went to [appellant’s] residence.
While she was there, [appellant] advised her that he
left his bank card at her townhouse. Ms. Robinson
advised [appellant] that if he gave the rings back,
she would give him whatever he wanted.
Ms. Robinson went back to her townhouse and found
the bank card in the sofa. She then returned to
[appellant’s] residence with the bank card.
[Appellant] advised Ms. Robinson that her items
were in a bag on the side of the residence. Feeling
apprehensive, Ms. Robinson again called the police.
The police responded to [appellant’s] residence.
Inside the bags was the third ring, DVD players and
an iPad. Ms. Robinson did not realize that
[appellant] had even taken the DVD players and the
iPad. The diamond ring and the promise ring were
not in the bag.
Over the following days, Ms. Robinson
continued sending text messages to [appellant]
about the rings. [Appellant] did not explain what
happened to the rings but he did admit to taking her
credit cards. However, the day after [appellant] was
released from jail on bond due to his arrest in this
case, Ms. Robinson was in the Target store in the
East Liberty section of the City of Pittsburgh.
Ms. Robinson encountered [appellant] and his friend,
Clyde. Ms. Robinson did not know Clyde’s last name.
[Appellant] motioned toward Clyde and Clyde
approached Ms. Robinson. Clyde handed the
promise ring to Ms. Robinson and he then asked for
money from her. She did not give him any money
but she took the ring back. Ms. Robinson never got
the diamond ring back.
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Ms. Robinson testified that the diamond ring
had been given to her by a fiancé. She testified,
over defense objection, that she saw the ring for sale
at Costco for $5,000. She testified that she told the
fiancé that she wanted that particular ring and that
was the ring she received. No specific testimony was
ever elicited concerning the value of the promise
ring. Ms. Robinson’s only description of the promise
ring was that it was made from platinum and
diamonds. Based on all of this testimony,
Judge Machen convicted [appellant] of all counts and
sentenced him as set forth above.
Trial court opinion, 7/30/15 at 1-4.
Appellant raises the following issues for our review:
I. DID THE COMMONWEALTH FAIL TO
ADEQUATELY ESTABLISH THE VALUE OF THE
ITEMS STOLEN IN ORDER TO MEET THE
MINIMUM REQUIREMENT TO CONVICT
[APPELLANT] OF THEFT BY UNLAWFUL TAKING
AS A FELONY OF THE THIRD DEGREE?
II. DID THE TRIAL COURT ABUSE ITS
DISCRETION WHEN IT ADMITTED ROBINSON’S
TESTIMONY REGARDING HOW MUCH SHE
THOUGHT [HER FIANCÉ] SPENT ON THE
[DIAMOND] RING AT COUNT ONE, AS THAT
TESTIMONY WAS WHOLLY SPECULATIVE AND
WITHOUT FOUNDATION?
III. WAS THE RESTITUTION AWARD OF $5,000 AN
ILLEGAL SENTENCE, AS IT WAS SPECULATIVE
AND UNSUPPORTED BY THE RECORD?
Appellant’s brief at 6.
Appellant complains that the evidence was insufficient to convict him
of theft by unlawful taking as a felony of the third degree as to Counts 1 and
2 because the Commonwealth failed to establish the value of the diamond
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ring, which is the subject of Count 1, as well as the promise ring, which is
the subject of Count 2. With respect to the value of the diamond ring,
appellant also complains that the trial court abused its discretion by
permitting the victim to testify as to its value because her testimony was
speculative and, therefore, inadmissible.
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proof or
proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the
entire record must be evaluated and all the evidence
actually received must be considered. Finally, the
trier of fact while passing upon the credibility of
witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
Under the Crimes Code, “[a] person is guilty of theft if he unlawfully
takes, or exercises unlawful control over, movable property of another with
intent to deprive him thereof.” 18 Pa.C.S.A. § 3921(a). The value of the
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stolen property determines the classification of the theft offense.
Commonwealth v. Figueroa, 859 A.2d 793, 797 (Pa.Super. 2004)
(citation omitted). Theft constitutes a felony of the third degree if the
amount involved exceeds $2,000. 18 Pa.C.S.A. § 3903(a.1). The relevant
portion of the statute that addresses valuation of stolen property for grading
purposes states:
(c) Valuation.--
The amount involved in a theft shall be
ascertained as follows:
(1) Except as otherwise specified in
this section, value means the
market value of the property at the
time and place of the crime, or if
such cannot be satisfactorily
ascertained, the cost of
replacement of the property within
a reasonable time after the crime.
....
(3) When the value of property cannot
be satisfactorily ascertained
pursuant to the standards set forth
in paragraphs (1) and (2)
[regarding negotiable instruments]
of this subsection its value shall be
deemed to be an amount less than
$50.
18 Pa.C.S.A. § 3903(c)(1) & (3).
The owner of lost or damaged personalty
traditionally has been permitted to testify to its value
in civil cases. The theory which underlies these
cases is that an owner, by reason of his status as
owner, is deemed qualified to give estimates of the
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value of what he owns. The weight to be accorded
his testimony is for the fact-finder. We believe that
the rule regarding an owner’s testimony in civil cases
should also be applied in criminal cases.
Commonwealth v. Warlow, 346 A.2d 826, 829 (Pa.Super. 1975) (internal
citations omitted). It is well settled that “[q]uestions regarding the
admission of evidence are left to the sound discretion of the trial court, and
we, as an appellate court, will not disturb the trial court’s rulings regarding
the admissibility of evidence absent an abuse of that discretion.”
Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa.Super. 2014)
(citation omitted).
Here, with respect to the value of the diamond ring, the victim testified
as follows:
Q. Where did you get that ring?
A. That was given to me by my fiancé.
Q. And did you have any idea as to the value of
that ring?
[DEFENSE COUNSEL]: Objection. Speculation.
THE COURT: Overruled.
[DEFENSE COUNSEL]: Objection to foundation.
THE COURT: Overruled. If you know.
A. Yes, I do. I had seen actually the ring that I
wanted at Costco. It’s valued at $5,000. Well,
the Costco price was $5,000, and I sent that
picture to [my fiancé] and told him that was
the ring I wanted.
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Q. And the ring that you saw at Costco, did that
appear to be the same exact ring you
received?
A. Yes.
Notes of testimony, 10/1/14 at 19-20.
We find no abuse of discretion with respect to the trial court’s
admission of the victim’s testimony concerning the circumstances of the
purchase of her diamond ring as it relates to value because it has long been
the law of this Commonwealth that the owner of property may testify to its
value. See Warlow, 346 A.2d at 829. Additionally, the trial court, sitting
as fact-finder, passed upon the victim’s credibility and was free to believe
all, some, or none of her testimony. See Pappas, 845 A.2d at 835-836. As
such, the Commonwealth produced sufficient evidence with respect to the
value of the diamond ring to support appellant’s conviction of theft by
unlawful taking as a third-degree felony at Count 1.
With respect to the promise ring, which was the subject of appellant’s
conviction at Count 2, the only evidence offered by the Commonwealth as to
its value was the following testimony given by the victim:
Q. And the second ring you said was your
grandmother’s promise ring?
A. Yes.
Q. What did that ring look like?
A. I actually have it. It’s, I believe, platinum and
diamond.
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Q. And you still have that ring today?
A. Yes, but it was initially taken.
Notes of testimony, 10/1/14 at 7.
The record reflects that the Commonwealth produced no evidence as
to the monetary value of the promise ring. The trial court, therefore, abused
its discretion in finding that the value of the ring exceeded $2,000 in order
to convict appellant of theft by unlawful taking as a third-degree felony at
Count 2 because the Commonwealth failed to produce sufficient evidence as
to the value of the promise ring.
Finally, appellant complains that the sentencing court’s imposition of
restitution in the amount of $5,000 was an illegal sentence because the
victim’s testimony as to the value of the diamond ring was speculative and,
therefore, inadmissible. While a challenge to the excessiveness of restitution
is a challenge to the discretionary aspects of sentencing, a challenge to the
appropriateness of restitution challenges the legality of that sentence.
Commonwealth v. Walker, 666 A.2d 301, 307 (Pa.Super. 1995).
Challenges to the legality of a sentence are never waived. Commonwealth
v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005).
Here, appellant challenges the appropriateness of the restitution
sentence based on his claim that the victim’s testimony regarding the value
of the diamond ring was speculative and, therefore, inadmissible. As
discussed above, however, the Commonwealth produced sufficient evidence
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to establish the $5,000 value of the diamond ring in order to support
appellant’s conviction of theft by unlawful taking as a third-degree felony on
Count 1. Consequently, appellant’s illegality of sentence claim necessarily
fails.
Conviction affirmed. Judgment of sentence as to Count 2 vacated.
Case remanded for further proceedings consistent with this memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
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