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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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