J-S72005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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