J-S62007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

GREGORY LYNN MORRIS

                            Appellant                 No. 1971 WDA 2014


              Appeal from the Judgment of Sentence July 1, 2014
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0011694-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED NOVEMBER 17, 2015

        Appellant, Gregory Lynn Morris, appeals from the judgment of

sentence imposed on July 1, 2014 and modified on July 29, 2014 following

his conviction after a non-jury trial of terroristic threats, simple assault,

criminal mischief, and defiant trespass.       On appeal, he challenges the

sufficiency of the evidence for criminal mischief graded as a misdemeanor of

the third degree, and the legality of the modified order of restitution

imposed as a condition of probation for the conviction of terroristic threats.

We vacate in part and remand.

        We take the underlying facts and procedural history in this matter

from the trial court’s opinion of June 23, 2015.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            [Appellant] was present at Club Pink in the City of
      Pittsburgh on July 27, 2013. At that time Derrick Maad, the
      head of security at Club Pink, told [Appellant] that he had to
      leave the Club as it was closing time. [Appellant] ignored
      Maad’s directive to leave. Maad then grabbed [Appellant] by his
      arm to escort him from the building. At that time, [Appellant]
      threw a beverage in Maad’s face and became violent toward
      Maad, swinging at him. Both Maad and [Appellant] fell to the
      ground. As Maad got [Appellant] to the door of the building,
      [Appellant] took another swing at Maad.             Maad tackled
      [Appellant]. [Appellant] continued to threaten that he would kill
      Maad the entire time. Eventually the club owner and Maad were
      able to remove [Appellant] and his girlfriend from the club.
      Maad observed [Appellant] by video camera pick up a cinder
      block and throw it through the back of the owner’s Corvette.
      Ultimately the police filed the charges against [Appellant] and he
      proceeded with a non-jury trial.

            . . . [Appellant] was convicted of all four counts against
      him. He was sentenced on the count of terroristic threats to
      eighteen months[’] probation and no further penalty was
      assessed at counts two through four. . . .

(Trial Court Opinion, 6/23/15, at unnumbered pages 1-2).

      Initially, when the trial court imposed Appellant’s sentence on July 1,

2014, it stated that Appellant was “to pay restitution in the amount of

$4,478.57.”   (N.T. Trial, 7/01/14, at 47).   However, after entertaining a

motion from defense counsel concerning the sufficiency of documentation

supporting the amount of restitution, the court stated that it would “schedule

a hearing on the question of restitution . . . within the next thirty days.”

(Id. at 48). The July 1, 2014 sentencing order indicates that “restitution is

pending” and that the trial court scheduled a hearing on restitution for July

29, 2014. (See Order, 7/01/14).




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        On July 29, 2014, the trial court conducted a hearing on restitution.

(See Trial Ct. Op., at unnumbered page 2).1 On July 29, 2014, the court

issued an order that Appellant pay restitution in the amount of $211.14.

(See id.; see also Order, 7/29/14).
                                                                           2
        On December 4, 2014, Appellant timely filed a notice of appeal.        On

April 13, 2015, Appellant filed his Rule 1925(b) concise statement of matters
____________________________________________


1
    The Commonwealth’s Brief indicates that:

              Counsel for [A]ppellant notes that the docket does not
        indicate that a hearing was held and that no transcripts are
        available, although Judge Cashman indicated in his [o]pinion
        that a hearing occurred. In the [c]oncise [s]tatement, counsel
        stated that he had attempted to procure a transcript of the July
        29, 2014 proceedings but had been unable to do so, and could
        not determine whether no hearing was actually held, or whether
        no testimony was taken. The Commonwealth has confirmed
        with the court reporter that no testimony was taken on July 29,
        2014 in this case.

(Commonwealth’s Brief, at 11, n.3) (record citations omitted).
2
   Pennsylvania Rule of Criminal Procedure 720 provides that if a defendant
files a post-sentence motion, a notice of appeal must be filed within 30 days
of the entry of the order deciding the motion, denying the motion by
operation of law, or memorializing the withdrawal of that post-sentence
motion.      See Pa.R.Crim.P. 720(A)(2). The order issued following a
defendant’s withdrawal of the post-sentence motion is required to include
notice of defendant’s appeal rights and time limits to file an appeal. See
Pa.R.Crim.P. 720(B)(4).

       Here, Appellant filed a post-sentence motion on July 3, 2014, which he
withdrew on July 29, 2014. Therefore, Appellant had until August 28, 2014
to file his notice of appeal. Thus, the December 4, 2014 notice of appeal
appears to be untimely on its face. However, “we have held that we will
address an otherwise untimely appeal if fraud or breakdown in the trial
(Footnote Continued Next Page)


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complained of on appeal.          See Pa.R.A.P. 1925(b).   The trial court filed its

1925(a) opinion on June 23, 2015. See Pa.R.A.P. 1925(a).

      Appellant raises the following two issues for this Court’s review:

        I.   Was the evidence insufficient to prove that the damage
             caused to Mr. Marino’s vehicle was in excess of $500.00 as
             was necessary for [Appellant] to be found guilty of a
             misdemeanor of the third degree?

       II.   Was the modified order of restitution improper, illegal,
             and, therefore, must be vacated as the Commonwealth
             failed to provide the trial court with the amount of
             restitution at the time of sentencing, the trial court failed
             to set restitution at sentencing, and the trial court failed to
                       _______________________
(Footnote Continued)

court’s processes resulted in an untimely appeal.” Commonwealth v.
Khalil, 806 A.2d 415, 420 (Pa. Super. 2002), appeal denied, 818 A.2d 503
(Pa. 2003) (citations omitted).

      Here, there is no indication in the record that, following Appellant’s
withdrawal of his post-sentence motion, the trial court filed an order
memorializing his withdrawal. Therefore, the trial court never properly
informed Appellant of his appeal rights. See id. at 420-21.

      Furthermore, on November 4, 2014, the trial court issued an order
confirming that Appellant’s motion for post sentence relief was denied by
operation of law pursuant to Pennsylvania Rule of Criminal Procedure
720(B)(3)(a) because the trial judge did not decide the post-sentence
motion within 120 days of the filing of the motion. (See Order, 11/04/14).
However the docket entries indicate that the November 4, 2014 Order was
“entered in error [because] [o]n 7/29/2014 [the] Post-Sentence Motion was
withdrawn by counsel and defendant.” This indication on the docket was not
added until January 26, 2015, nearly two months after Appellant filed his
notice of appeal.

       Accordingly, we are constrained to find that Appellant’s untimely
appeal was caused at least in part by a breakdown of the processes of the
trial court. Therefore, we will address Appellant’s claims on the merits. See
Khalil, supra at 421.



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            place, on the record, its reasons for modifying the
            restitution subsequent to sentencing?

(Appellant’s Brief, at 6) (most capitalization omitted).

      In his first issue, Appellant argues that the evidence at trial was

insufficient to support his conviction of criminal mischief graded as a

misdemeanor of the third degree. Specifically, he argues that the evidence

is insufficient because the Commonwealth did not offer evidence at trial that

the damages in this case amounted to more than $500.00 as required by

18 Pa.C.S.A. §§ 3304(a)(2), (b).    (See Appellant’s Brief, at 13).   The trial

court and Commonwealth both agree that the evidence was insufficient to

support Appellant’s conviction for a misdemeanor of the third degree. (See

Trial Ct. Op., at unnumbered page 2; Commonwealth’s Brief, at 11).         We

agree.

      Preliminarily, we note that although no sentence was entered on Count

Three, the trial court’s determination of guilt with no penalty imposed after

conviction, constitutes a judgment of sentence which will support an appeal.

See Commonwealth v. Clark, 746 A.2d 1128, 1131 (Pa. Super. 2000),

appeal denied, 764 A.2d 1064 (Pa. 2000).

      Our standard of review for a challenge to the sufficiency of evidence is

well settled:

                   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

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            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 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 evidence actually received must be considered.
            Finally, the [finder] 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.

            Further, in viewing the evidence in the light most favorable
      to the Commonwealth as the verdict winner, the court must give
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)

(citations omitted).

      Here, after a non-jury trial, the trial court found Appellant guilty of

criminal mischief, graded as a misdemeanor of the third degree, in violation

of 18 Pa.C.S.A. § 3304(a)(2), which provides that a person is guilty of

criminal mischief if he “intentionally or recklessly tampers with tangible

property of another so as to endanger person or property[.]” 18 Pa.C.S.A.

§ 3304(a)(2).   With respect to the grading of the offense, 18 Pa.C.S.A.

§ 3304(b) states “Grading. – Criminal mischief is a . . . misdemeanor of the

third degree if he intentionally or recklessly causes pecuniary loss in excess


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of $500[.] . . .   Otherwise criminal mischief is a summary offense.”      18

Pa.C.S.A. § 3304(b).

      Because the Commonwealth did not prove that Appellant caused

pecuniary loss in excess of $500, (see N.T. Trial, at 44-48), the evidence

was insufficient to convict him as charged for a misdemeanor of the third

degree. See Commonwealth v. Kincade, 518 A.2d 297, 299 (Pa. Super.

1986). Rather, the evidence would only have been sufficient to convict him

of criminal mischief graded as a summary offense, which does not require

evidence of pecuniary damage. See id. However, Appellant was charged

and convicted of the offense graded as a misdemeanor of the third degree.

(See N.T. Trial, at 4). Notably, both the Commonwealth and the trial court

now agree that Appellant should not have been convicted of a misdemeanor

of the third degree.      (See Trial Ct. Op., at unnumbered page 2;

Commonwealth’s Brief, at 11).

      Appellant’s first issue is meritorious. Accordingly, we are constrained

to vacate Appellant’s conviction of criminal mischief as a misdemeanor of the

third degree.

      Nevertheless, because the trial court imposed no further penalty for

this conviction, Appellant’s sentence remains unchanged. Therefore we will

address Appellant’s second claim on the issue of restitution.

      In his second issue, Appellant claims that the modified order of

restitution is improper, illegal, and must be vacated. (See Appellant’s Brief,

at 6). Specifically, he argues that the modified order is illegal because no

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evidence was provided for the amount of restitution at sentencing, the trial

court did not set restitution at sentencing, and the trial court failed to place

on the record its reasons for modifying the restitution subsequent to

sentencing.    (See id. at 16).   The Commonwealth agrees that “no record

exists which serves to demonstrate the basis for the $211.14 ultimately

awarded” in restitution and agrees that the restitution award is illegal and

must be vacated. (Commonwealth’s Brief, at 14; see id. at 16). We agree.

      Preliminarily, we note that although Appellant did not raise the issue of

illegal restitution in his motion for post-sentence relief or in his Rule 1925(b)

statement, Appellant did not waive the issue of the legality of his restitution

sentence.     Appellant raises a non-waivable challenge because this issue

challenges the legality of his sentence, as opposed to the trial court’s

exercise of discretion in fashioning it. See In re M.W., 725 A.2d 729, 731

(Pa. 1999); see also Commonwealth v. Oree, 911 A.2d 169, 173 (Pa.

Super. 2006) (“When the court’s authority to impose restitution is

challenged, it concerns the legality of the sentence; however, when the

challenge is based on excessiveness, it concerns the discretionary aspects of

the sentence.”).

      Our standard of review for challenges to restitution orders is well

settled:

      It is well settled that a challenge to a court’s authority to impose
      restitution is generally considered to be a challenge to the
      legality of the sentence.       A challenge to the legality of a
      sentence . . . may be entertained as long as the reviewing court
      has jurisdiction. It is also well-established that if no statutory

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       authorization exists for a particular sentence, that sentence is
       illegal and subject to correction. An illegal sentence must be
       vacated.    Issues relating to the legality of a sentence are
       questions of law; as a result, our standard of review over such
       questions is de novo and our scope of review is plenary.

Commonwealth v. Gentry, 101 A.3d 813, 816-17 (Pa. Super. 2014)

(citations and quotation marks omitted).

             In the context of a criminal case, restitution may be
       imposed either as a direct sentence, 18 Pa.C.S.A. § 1106(a), or
       as a condition of probation under 42 Pa.C.S.A. § 9754, the
       statute implicated in the instant case. . . . [W]hen restitution is
       ordered as a condition of probation, the sentencing court is
       accorded the latitude to fashion probationary conditions designed
       to rehabilitate the defendant and provide some measure of
       redress to the victim.

Commonwealth v. Kinnan, 71 A.3d 983, 986-87 (Pa. Super. 2013)

(citations omitted). 3 Furthermore,

              When restitution is imposed as a condition of probation
       under section 9754, the required nexus between the defendant’s
       criminal    conduct     and   the    victim’s   loss  is   relaxed.
       Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. Super.
       2007). However, there must be at least an indirect connection
       between the criminal activity and the loss. Id. Additionally, “to
       the extent a sentence of probation is imposed to make
       restitution for losses caused by the defendant’s criminal conduct,
       there     should    be   proof    of   the    damages    suffered.”
       Commonwealth v. Hall, 994 A.2d 1141, 1145 n.3 (Pa. Super.
       2010) (en banc) (citing Harner, 617 A.2d at 707). Finally,
       where a sentencing court imposes restitution as a probationary
       condition, sub-section 9754(c)(8) obligates the court to
       determine what loss or damage has been caused and what
____________________________________________


3
  In this case, both the original and modified order of sentence indicate that
restitution is a condition imposed on the probationary sentence on Count
One, terroristic threats. (See Order, 7/01/14; Order, 7/29/14).



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      amount of restitution the defendant can afford to pay. 42
      Pa.C.S.A. § 9754(c)(8); see also Hall, 904 A.2d at 1145 n.3.

Kinnan, supra at 987.

      Here, on July 1, 2014, after sentencing on this matter, the trial court

issued a sentencing order that stated “Restitution: Is pending. A hearing is

scheduled for July 29[,] 2014”.     (Order, 7/01/14).   On July 29, 2014, the

trial court issued a modified order of sentence that stated “Restitution:

Defendant is to pay restitution in the amount of $211.14 to Robert Marino.”

(Order, 7/29/14).     Although the trial court indicates that a hearing on

restitution was conducted on July 29, 2014, the record does not contain a

docket entry or transcript of that hearing and the order modifying the

restitution does not contain the trial court’s reasons and determination of

what loss or damage has been caused and what amount of restitution

Appellant can afford to pay. (See id.; see also Trial Ct. Op, at unnumbered

page 2).

      Because the record does not show that the trial court considered the

amount of loss or damage that Appellant caused, or the amount of

restitution that he could afford to pay, we are constrained to conclude that

both the July 1, 2014 order of sentence and the July 29, 2014 modified

order of sentence violated section 9754. See 42 Pa.C.S.A. § 9754; see also

Kinnan, supra at 987-88.        Therefore, we are constrained to vacate both

orders to the extent they concern restitution and remand this matter to the

trial court for resentencing.



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      Accordingly, we affirm the judgment of sentence as to probation. We

vacate the trial court’s judgment of sentence and order modifying sentence

insofar as they pertain to restitution.   We remand this matter to the trial

court to conduct a new sentencing hearing, limited to the issue of restitution,

consistent with section 9754, and in accordance with this decision.

      Judgment of sentence affirmed in part and vacated in part.          Case

remanded to the trial court for disposition in accordance with this decision.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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