J-S65010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MARCO DOMONIC MUNNO

                            Appellant                  No. 1561 WDA 2015


                Appeal from the Judgment of Sentence July 9, 2015
                 In the Court of Common Pleas of Allegheny County
                Criminal Division at No(s): CP-02-CR-0016539-2014


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED SEPTEMBER 09, 2016

        Marco Domonic Munno appeals from his judgment of sentence,

entered in the Court of Common Pleas of Allegheny County, after he was

found guilty of retail theft.1 After careful review, we affirm in part, vacate in

part and remand for resentencing.

        Munno was charged with one count each of receiving stolen property

(RSP) and retail theft.          The RSP charge was withdrawn at Munno’s

preliminary hearing and he waived his right to a jury trial on the charge of

retail theft.

        The trial court recited the underlying facts of the case as follows:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3929(a)(1).
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      [O]n July 9, 2015, Jason Belczyk, the store manager of the Moon
      Township Walgreens, watched a man approach the exit of
      Walgreens. Mr. Belczyk identified the man who was approaching
      the exit of Walgreens as [Munno]. This Court finds Mr. Belczyk’s
      identification of [Munno] to be credible. [Munno] was carrying a
      blue basket filled with Rogaine. As [Munno] approached the
      gates, the store alarms were activated, as were the “spider”
      alarms on the packages. When the alarms sounded, [Munno]
      ran out of the store. Mr. Belczyk followed [Munno] out of the
      store, and observed [Munno] jump into a running vehicle that
      was backed into a parking space. Mr. Belczyk then obtained the
      license plate number for the vehicle and contacted the Moon
      Township Police Department.       [Munno] did not pay for the
      Rogaine prior to exiting the store, nor did he have permission to
      take the merchandise out of the store.

Trial Court Opinion, at 3/1/16, 2-3.

      At a bench trial, before the Honorable Thomas E. Flaherty, the

Commonwealth presented store video surveillance of the incident. Belczyk

testified that the video depicted the entrance of the Moon Township

Walgreen’s and also showed Munno exiting the store with a basket full of

unpaid products. In the video, the store alarm sounds as Munno begins to

exit and, then, eventually runs out of the store.

      At the conclusion of the non-jury trial, the court found Munno guilty of

retail theft.   On July 9, 2015, Munno was sentenced to six months of

probation and ordered, as a condition of his probation, to pay $800.00 in

restitution to Walgreen’s.   Munno filed post-sentence motions challenging

the court’s restitution sentence.      The court denied the motions and this

timely appeal follows.

      On appeal, Munno presents the following issues for our consideration:




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       (1)    Did the trial court impose an illegal sentence by ordering
              Mr. Munno to pay an amount of restitution which was
              speculative and not supported by the record?

       (2)    Was the evidence insufficient[2] to support Mr. Munno’s
              conviction for retail theft where the only evidence
              identifying him as the perpetrator was an in-court
              identification by a witness who had an extremely minimal
              opportunity to observe the perpetrator during the incident
              and where the trial court conceded at the time it rendered
              its verdict of guilty that “there could be reasonable doubt
              as to whether [the perpetrator] was Mr. Munno?”

       Pursuant to our Commonwealth’s restitution statute:

       (a) General rule. — Upon conviction for any crime wherein
       property has been stolen, converted or otherwise unlawfully
       obtained, or its value substantially decreased as a direct result of
       the crime, or wherein the victim suffered personal injury directly
       resulting from the crime, the offender shall be sentenced to
       make restitution in addition to the punishment prescribed
       therefor.

       (b)      Condition of probation or parole. — Whenever
       restitution has been ordered pursuant to subsection (a) and the
       offender has been placed on probation or parole, his compliance
       with such order may be made a condition of such probation or
       parole.

       (c) Mandatory restitution.

                                       *       *   *



____________________________________________


2
   In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.
Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).




                                           -3-
J-S65010-16


           (2) At the time of sentencing the court shall specify the
           amount and method of restitution. In determining the
           amount and method of restitution, the court:

           (i) Shall consider the extent of injury suffered by
           the victim, the victim’s request for restitution as
           presented to the district attorney in accordance with
           paragraph (4)3 and such other matters as it deems
           appropriate.

18 Pa.C.S. § 1106 (emphasis added). The amount of a restitution order is

limited by the loss or damages sustained as a direct result of defendant's

criminal    conduct     and    by    the       amount   supported   by   the   record.

Commonwealth v. Dohner,, 725 A.2d 822 (Pa. Super. 1999).

        Instantly, the trial court urges this court4 to remand the matter solely

on the issue of the amount of restitution imposed upon Munno based upon




____________________________________________


3
    Pursuant to section 1106(c)(4):

        (i) It shall be the responsibility of the district attorneys of the
        respective counties to make a recommendation to the court at or
        prior to the time of sentencing as to the amount of restitution to
        be ordered. This recommendation shall be based upon
        information solicited by the district attorney and received from
        the victim.

        (ii) Where the district attorney has solicited information from
        the victims as provided in subparagraph (i) and has received no
        response, the district attorney shall, based on other available
        information, make a recommendation to the court for restitution.

18 Pa.C.S. § 1106(c)(4)(i), (ii).
4
  The Commonwealth concurs with the trial court that the case should be
remanded for resentencing on the proper amount of restitution.      See
Commonwealth’s Brief, at 5.


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J-S65010-16



the fact that the Commonwealth did not present any documentation to

support the $800.00 order of restitution. We agree.

         From the record, it appears that the restitution amount was based

solely     upon    Belczyk’s     testimony     as    set   forth   in   the   criminal

complaint/affidavit of probable cause.              See Police Criminal Complaint,

11/18/14, at 2 (“actor . . . intentionally retained . . . property, namely 16

boxes of ROGAINE valued at $50.00 per box for a total of $800.00[.]”);

Affidavit of Probable Cause, 11/18/14, at 2 (“Jason [Belczyk] advised me

that the suspect ran out of the store with about 16 boxes of ROGAINE

valued at $50.00 each for a total theft amount of $800.00.”).                   Since

restitution is a sentence, the amount ordered must be supported by the

record and may not be speculative or excessive. Commonwealth v. Reed,

543 A.2d 587, 589 (Pa. Super. 1988). Accordingly, without any documented

evidence to support the ordered restitution amount, it is in direct

contravention of sections 1106(2)(i) and 1106(4) and established case law.

See Commonwealth v. Reed, 543 A.2d 587, 589 (Pa. Super. 1988).

Thus, we reverse the restitution portion of Munno’s sentence and remand

the matter for a new sentencing hearing limited to the issue of the proper

amount of restitution to be ordered.

         With regard to Munno’s argument that the evidence was insufficient to

find him guilty of retail theft,5 we affirm on the basis of the opinion authored

____________________________________________


5
    The offense of retail theft is defined as:
(Footnote Continued Next Page)

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by Judge Flaherty. As noted in Judge Flaherty’s decision, the store manager,

whose testimony the court found credible, had an unobstructed view of

Munno from a distance of 30 feet and observed Munno as he exited and

ultimately fled Walgreen’s with a basket full of unpaid Rogaine as store

alarms sounded. See Commonwealth v. Dent, 837 A.2d 571 (Pa. Super.

2003) (where defendant tripped electronic article surveillance alarm as she

left drugstore, store manager's search of defendant’s purse uncovered

unpaid set of fingernails with alarm code sticker, defendant fled store when

manager threatened to call police, and store manager identified defendant

in court, there was sufficient evidence to uphold retail theft conviction).

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

remanded for proceedings consistent with this decision.6              Jurisdiction

relinquished.



                       _______________________
(Footnote Continued)


      (a) Offense defined.--A person is guilty of a retail theft if he:

          (1) takes possession of, carries away, transfers or causes
          to be carried away or transferred, any merchandise
          displayed, held, stored or offered for sale by any store or
          other retail mercantile establishment with the intention of
          depriving the merchant of the possession, use or benefit of
          such merchandise without paying the full retail value
          thereof[.]

18 Pa.C.S. 3929(a)(1).
6
  We affirm the retail theft conviction and remand solely for resentencing on
restitution as a condition of Munno’s probation.


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J-S65010-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




                          -7-
                                                                                  Circulated 09/01/2016 09:21 AM




  IN THE COURT OF COMMON PLEAS OF ALLEGHENY                         COUNTY, PENNSYLVANIA
                                        CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLV ANJA,                                  CC No.: 16539-2014
                                                                Superior Court No: 1561 WDA 2015
        v.
MARCO DOMENIC MUNNO.
                     Defendant.
                                                OPINION
FLAHERTY, J.                                                                   March I. 2016


        Marco Domenic Munno ("Defendant") appeals from the Judgment of Sentence imposed

on July 9,   2015.

        On November 18, 2014, Defendant was charged with one count of receiving stolen

property ( 18 Pa.C.S.A. §3925(a)) and one count of retail theft ( 18 Pa.CS.A. §3929(a)( I)) for

offenses that occurred on November 8, 2014. The charge of receiving stolen property was

withdrawn    al   Defendant's preliminary hearing and the sole charge of retail theft was waived to

the Court of Common Pleas.

        On July 9, 2015, Defendant waived his right to a trial by jury and the matter proceeded to

a non-jury trial. At the conclusion of all of the evidence, this Court found Defendant guilty of

the sole count of retail theft. Defendant waived his right to a pre-sentence report and Defendant

was sentenced to a period of six (6) months probation and ordered to pay restitution to

Walgreen's in the amount of eight hundred dollars ($800.00).

       On July 20, 2015, Defendant filed a Motion to Reconsider Sentence wherein he

challenged this Court's order of sentence with regard to the amount of restitution.   On September

8, 2015, this Court denied his Motion. On October 8, 2015, Defendant filed his Notice of
 Appeal. Via Order of Court dated October 13, 2015, Counsel for Def cndant was directed to file

a Concise Statement of Matters Complained of on Appeal. On December 3, 2015, Counsel for

Defendant filed his Concise Statement wherein he raised the following issues;

            I.    The evidence was insufficient to prove, beyond a reasonable doubt, that Defendant
                  was the individual who committed the offense for which he was charged.
            2. The Commonwealth          foiled to satisfy its burden of proving the restitution amount as it
                  presented no evidence of record regarding restitution.
            3. The trial court erred when it denied Defendant's post-sentence motion to reconsider
                  sentence and requesting a hearing to determine the restitution amount, as a hearing
                  was required to determine the full amount of restitution under an adversarial system
                  with considerations of both federal and state due process.
            4.    The trial court erred when it sentenced Defendant to pay $800 in restitution as the
                  record does not reflect facts making up the restitution amount, the restitution amount
                  was speculative,   and the trial court did not state on the record the facts the
                  Commonwealth       put into evidence proving that such a restitution amount was proper.


            The facts as found by this Court arc as follows: on July 9, 2015, Jason Belczyk, the store

manager of the Moon Township Walgrcens, watched a man approach the exit of Walgrecns.

(Trp. p. 9). Mr. Belczyk identified the man who was approaching the exit of Walgreens as

Defendant.         (Trp. p. 11 ). This Court finds Mr. Belczyk's identification of Defendant to be

credible.        Defendant was carrying a blue basket filled with Rogaine.      (Trp. p. 9). As Defendant

approached the gates. the store alarms were activated, as were the "spider" alarms on the

packages.        (Trp. p. 9). When the alarms sounded, Defendant ran out of the store. (Trp, p. 9).

Mr. Belczyk followed Def endant out of the store, and observed Defendant jump into a running

vehicle that was backed into a parking space. (Trp. p. JO). Mr. Belczyk then obtained the

license plate number for the vehicle and contacted the Moon Township Police Department.                (Trp.




                                                         2
p. 10). Defendant did not pay for the Rogainc prior to exiting the store, nor did he have

permission to take the merchandise out of the store. (Trp. p, 11 ).

           At trial, the Commonwealth presented video surveillance of the incident that was taken

from Walgreen's.      Mr. Bclczyk testified that the video depicted the entrance of Walgreen's.

(Trp. p. 13). This video depicts Defendant exiting the store with a basket full of product. (Trp.

p. 13). As Defendant approaches the exit, the alarms sound and Defendant runs out of the store.

(Trp. p. 13).

           Defendant's first issue on appeal is that the evidence was insufficient to prove beyond a

reasonable doubt that Def endant is the person who committed U1e offense of retail theft. Retail

theft, as charged in this case, is defined in 18 Pa.C.S.A. §3929(a)( I) as follows:

        a person is guilty of a retail theft if he takes possession of, carries away, transfers
        or causes to be carried away or transferred, any merchandise displayed, held,
        stored or off ercd for sale by any store or other retail mercantile establishment with
        the intention of depriving the merchant of the possession, use or benefit of such
        merchandise without paying the full retail value thereof.

18 Pa.C.S.A.     §3929(a)(( ). As stated above, Defendant was observed with a basket full of

Rogaine exiting Walgreen's      without paying for the merchandise or having any other permission

lo remove the product from the store. Defendant then fled with the Rogaine when the alarms

sounded.     Defendant's identity was credibly established by the testimony of Mr. Belczyk, who

was able to identify Defendant in court. As such, the Commonwealth established         beyond a

reasonable doubt that Defendant is the person who committed the November 8, 2014 retail theft

at Walgreen's in Moon Township.

        Defendant's three remaining issues revolve around the restitution amount set by this

Court. After sentencing, the Commonwealth presented this Court with a proposed restitution

order in the amount of $800.00. At that time, it was represented by the Commonwealth         that




                                                   3
.   '




        there were 16 boxes of Rogaine stolen by Defendant and each had a value of $50.00. It is the

        recollection of this Court that the Commonwealth           presented an invoice or inventory report from

        Walgrccns     that substantiated this amount.     Thus. this Court accepted the Commonwealth's

        restitution order. At that time, Defendant indicated that he did not believe there were sixteen

        ( 16) boxes of Rogaine anti challenged the amount of restitution.         This Court thereafter set the

        restitution at $800.00.   In his Post-Sentence     Motion, Defendant requested a hearing on the issue

        of restitution.   Believing that the Commonwealth          presented evidence to substantiate the amount

        of $800.00 in restitution, this Court denied this request.

                 Upon review of the transcripts and court record in this matter, it does not appear that

        Commonwealth's       inventory report or other invoice that substantiated the quantity or amount of

        Rogaine that was stolen was made part of the record. As such, this Court requests that this

        matter be remanded for a hearing limited to the issue of the amount of restitution.

                 For the foregoing reasons, this Court's July 9, 2015 finding of guilt should be affirmed,

        but the matter should be remanded for a hearing on the issue of restitution.



                                                            BY THE COURT,



                                                         ~C,~
                                                         ~homas E.Flahcrty, Judge
                                                           Court of Common Pleas




                                                               4
        Commonwealth       of Pennsylvania               IN THE COURT OF c'6MMON PLEAS OF ALLEGHENY
                          V,                             COUNTY, PENNSYLVANIA
              Marco Oomonlc Munno
                                                         CRIMINAL DIVISION

                                                        :DOCKET NO:      CP-02-CR-0016539-2014
                                                        :DATE OF ARREST: 11/25/2014
                                                          OTN:                G 696157-0
                                                        . SID:                306-72-62·3
                                                        (DOB:                 12/12/1981



                                        ORDER OF SENTENCE

       AND NOW, this 9th day of July, 2015, the defendant having been convicted in the above-captioned

case is hereby sentenced by this Court as follows. The defendant is to pay all applicable fees and costs

unless otherwise noted below:




Count 1 - 18 § 3929 §§ A1 - Retail Theft-Take Mdse (M1}
   To be placed on Probation - County Regular Probation· for a minimum period of 6 Month(s} and a maximum period
   of 6 Month(s) to be supervised by Allegheny County Probation.
   The followlng conditions are imposed:
      Restitution: Defendant is to pay restitution fn the amount of $800 to Walgreen's
      Contact - No Contact: Defendant is to have no contact with the Walgreen's on University Blvd.
   This sentence shall commence on 07/0912015.

Count 99,999 • 18 § 3925 §§A-Receiving Stolen Property (M1)
   Offense Disposition: Disposed at Lower Court




                                                                   BY THE COURT:

                         07/09/2015                                 ~~~
                                                                   Judge Thomas Flaherty




                                                                                              Printed 07/0912015 1t57:57AM
CPCMS2066




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