J. A34014/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
PATRICK McLOUGHLIN,                    :          No. 743 MDA 2014
                                       :
                       Appellant       :


          Appeal from the Judgment of Sentence, April 1, 2014,
            in the Court of Common Pleas of Lebanon County
            Criminal Division at No. CP-38-CR-0001088-2013



COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
PATRICK McLOUGHLIN,                    :          No. 969 MDA 2014
                                       :
                       Appellant       :


          Appeal from the Judgment of Sentence, May 13, 2014,
            in the Court of Common Pleas of Lebanon County
            Criminal Division at No. CP-38-CR-0001088-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 20, 2015

     Patrick McLoughlin appeals, pro se, from the judgment of sentence

imposed in the Court of Common Pleas of Lebanon County.

     The facts, as aptly summarized by the trial court, are as follows:

                 DEFENDANT’s charges stem from an incident
           that occurred overnight on Saturday, June 15, 2013
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          in front of the residence located at 430 Locust Street
          in Lebanon. Alane Steif (hereafter “STEIF”) is the
          owner     of   the    residence.      Her   boyfriend,
          Lamont Stanley (hereafter “VICTIM”), was spending
          the night at the residence while she was out of town.
          (N.T. 6, 20). VICTIM’s vehicle -- a unique 2004
          White Jaguar X-type -- was parked outside of the
          residence overnight. (N.T. p. 6.) When VICTIM
          returned to his car on Monday, June 17, he noticed
          that someone had scratched the side of his vehicle
          with a sharp object. (N.T. 6, 12).

                 As a result of prior vandalism, VICTIM and
          STEIF installed two video cameras on the front of the
          residence in January of 2013. (N.T. 14-15). The
          video consists of two channels that correspond to the
          two cameras in front of STEIF’s house. (N.T. 8).
          The first channel shows two individuals “walking off”
          past VICTIM’s vehicle on June 15, 2013 at
          approximately 3:25 a.m. (N.T. 9). After they pass,
          the vehicle shows scratches on its side caused by
          “some sort of sharp object.” (N.T. 9). The second
          channel shows a front view of the individuals
          approaching the vehicle. (N.T. 8). The video is dark
          and it is difficult to discern the facial characteristics
          of the individuals in the video. However, the video
          clearly depicts one of the men “keying” the victim’s
          vehicle.

                A Summary Hearing was held on April 1, 2014.
          At the Hearing, VICTIM identified the two men as
          DEFENDANT and his son, Alan McLoughlin. (N.T. 8).
          VICTIM admitted that he had never actually met
          DEFENDANT. (N.T. 10). However, he testified that
          he was able to identify DEFENDANT because he had
          seen DEFENDANT drive by him on numerous
          occasions.     (N.T. 11).       More importantly,
          DEFENDANT’s son, Alan McLoughlin, dated STEIF for
          approximately six and a half years. (N.T. 11, 22).
          VICTIM explained that STEIF had shown him pictures
          of DEFENDANT in the past. (N.T. 11).

                STEIF also identified DEFENDANT and his son
          as the two individuals in the video. (N.T. 22, 26).


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          She explained that she spent a significant amount of
          time with DEFENDANT during her long relationship
          with his son, Alan. (N.T. 22). She explained that
          Alan lived with her at the 430 Locust Street
          residence for a few years, and DEFENDANT visited
          them several times a week. (N.T. 22).

                 STEIF testified that she was able to identify
          DEFENDANT because he has a very distinct walk
          resulting from various knee and toe injuries. (N.T.
          23). From a side profile view, she could identify the
          man in the video as DEFENDANT “from the nose, the
          ears, the clothes that he wears, [and] the way he
          rolled his shirt.” (N.T. 23-24). She explained that
          he “has slightly larger ears,” (N.T. 25), and “he
          always had a baseball cap on.” (N.T. 23-24). She
          testified that the hat worn by the individual in the
          video is consistent with the hat that DEFENDANT
          frequently wore -- a black hat with the word
          “Ireland” in green print.     (N.T. 31, 44).     She
          proclaimed that she had “no doubt in [her] mind”
          that DEFENDANT was the man in the surveillance
          video. (N.T. 23-24). Similarly, she was able to
          identify Alan because the second man in the video
          moved “exactly the way Alan moves back and forth”
          when he walks. (N.T. 26).

                 Prior to the June 15, 2013 incident, there was
          some animosity between STEIF and DEFENDANT. At
          some point prior to the incident, DEFENDANT filed a
          civil action against STEIF for $20,000.00 worth of
          renovations he made to the 430 Locust Street
          property. (N.T. 14, 37). STEIF testified that she
          was not aware of anyone else other than
          DEFENDANT or his son Alan that would have a
          motive to damage or destroy her property or the
          property of her boyfriend. (N.T. 31).

                DEFENDANT        proclaimed    his    innocence
          throughout the Hearing. He testified that he did not
          recognize either of the men in the surveillance video,
          and at the time of the vandalism, he was in his home
          at 501 East Kline Avenue.             (N.T. 38-39).
          DEFENDANT explained that he is very sick, and


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          suffers from leukemia, Archer’s Disease, and high
          blood pressure. (N.T. 35). He explained that he
          takes certain medication for his ailments that may
          only be taken at night, and that he has not been
          outside of his house at night after 9:00 p.m. for the
          last year and a half. (N.T. 39). We note that
          DEFENDANT’s residence is approximately one mile
          from STEIF’s home. (N.T. 41). Further, there is a
          bar located around the corner from STEIF’s
          residence. (N.T. 43).

                 DEFENDANT       was     initially  charged   with
          misdemeanor Criminal Mischief on June 24, 2013.
          We conducted a bench trial on this charge on April 1,
          2014.     Following testimony, we determined that
          DEFENDANT was in fact the culprit who damaged the
          victim’s     vehicle.       However,      because    the
          Commonwealth did not establish the monetary
          extent of VICTIM’s damages, this Court found
          DEFENDANT guilty of the summary offense of
          Criminal Mischief.        During sentencing, VICTIM
          presented a claim for restitution in the amount of
          $1,598.22.       Since this value far exceeded the
          statutory limit for the grading of Criminal Mischief as
          a Summary Offense, we concluded that the
          maximum amount to which VICTIM was entitled to
          receive for the summary offense was the statutory
          limit of $500.00. Immediately following trial, we
          sentenced DEFENDANT to pay the costs of
          prosecution, a fine of $100.00, and restitution in the
          amount of $500.00. We advised the Commonwealth
          that it could file a Motion for Modification of Sentence
          within 10 days if it could provide case law supporting
          its claim that VICTIM should be awarded $1,598.22
          in restitution.

                The Commonwealth filed their Motion for
          Modification of Sentence on April 10, 2014, citing the
          case of Commonwealth v. Wright, 722 A.2d 157
          (Pa. Superior Ct. 1998). We issued a Rule to Show
          Cause upon DEFENDANT giving him an opportunity
          to oppose the Commonwealth’s request for sentence
          modification.      DEFENDANT did not do so.
          Accordingly, we granted the Commonwealth’s Motion


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             on May 12, 2014 and awarded restitution to VICTIM
             in the amount of $1,598.22.      In the interim,
             DEFENDANT appealed to the Superior Court on
             April 30, 2014.    DEFENDANT filed a pro se
             Statement of Matters Complained Of on Appeal on
             May 12, 2014, and he filed amended versions on
             May 21, 2014 and May 28, 2014. We author this
             Opinion pursuant to Pa.R.A.P. 1925 to address
             DEFENDANT’s appeal and explain our reasons for
             modifying DEFENDANT’s sentence.

Trial court opinion, 6/23/14 at 3-7.

       On May 20, 2014, the trial court issued an order scheduling a Grazier1

hearing. On May 21, 2014, appellant filed a pro se notice of appeal from

the May 13, 2014 order.       (Docket #27.)     Appellant filed an “amended

concise statement of matters complained of on appeal,” and then on May 28,

2014, he filed a pro se “supplement to defendant’s amended concise

statement of matters complained of on appeal.” (Docket #29, 30.) On May

28, 2014, a Grazier hearing was held.

       At the outset, we note that appellant’s appeal filed on April 30, 2014,

was premature. The Commonwealth had filed a motion for reconsideration,

which had not been disposed of by the trial court. Because the entry of the

order disposing of the Commonwealth’s motion to modify sentence then

becomes the triggering device for the defendant’s notice of appeal,

appellant’s April 30, 2014 notice of appeal from the April 1, 2014 judgment

of sentence was premature. See Pa.R.Crim.P. 720, Comment. Additionally,



1
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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appellant was acting pro se and without the knowledge of his counsel who

had not yet been granted permission to withdraw.          Thus, we dismiss the

appeal filed at No. 743 MDA 2014.

     We now turn to the appeal properly filed from the May 13, 2014

amended judgment of sentence. Appellant presents the following issues for

our review:

              1.   Whether a poor quality, blurry surveillance
                   video of an unrecognizable person (who was,
                   in fact, not appellant) committing an act of
                   vandalism,    along    with    other    evidence
                   disproved by physical facts, is insufficient to
                   prove beyond a reasonable doubt that
                   appellant was guilty of criminal mischief[?]

              2.   Whether the verdict was against the weight of
                   the evidence where the surveillance video
                   purported to tie defendant to the crime, in fact,
                   showed    someone      else   committing     the
                   vandalism[?]

              3.   Whether the trial court abused its discretion
                   and denied Appellant Due Process by basing its
                   finding of guilt on wrongly assumed facts that
                   were not introduced at trial[?]

              4.   Whether       appellant     was      denied   his
                   Constitutional right to a jury trial when he was
                   tried for a second-degree misdemeanor and
                   did not voluntarily or knowingly waive his right
                   to a jury trial pursuant to Pa.R.Crim.P. 620[?]

              5.   Whether      the   Commonwealth          attorney
                   committed gross prosecutorial misconduct and
                   overreaching when he intentionally denied
                   Appellant his Constitutional right to a jury trial
                   by dropping the misdemeanor charge, securing
                   a bench-trial based on the lesser, summary
                   charge, and then proceeding to try defendant


                                      -6-
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               on the supposedly-dropped misdemeanor
               charge and whether retrying Appellant in that
               situation would violate Double Jeopardy?

          6.   Whether the trial court erred by admitting and
               considering as evidence a private surveillance
               video that was not properly authenticated[?]

          7.   Whether the trial court imposed an illegal
               sentence that was not supported by the
               evidence[?]

          8.   Whether the trial court failed to adhere to
               statutory sentencing requirements when it
               resentenced Appellant without his knowledge
               or presence[?]

          9.   Whether      appellant’s    trial  counsel    was
               ineffective in the following respects:

               a.    Counsel did not interview or call
                     witnesses who could have testified
                     (1) that Appellant did not own a
                     hat or clothes like those worn by
                     the man in the video and (2) that
                     the man in the video was not
                     Appellant.

               b.    Counsel did not object to the
                     admissibility of the video, which
                     was not properly authenticated.

               c.    Counsel did not inform Appellant,
                     or object, when the Commonwealth
                     dropped the misdemeanor charge,
                     requested a bench trial, asserted
                     that Appellant no longer had a
                     right to a jury trial, and then tried
                     Appellant on the misdemeanor
                     charge.

               d.    Counsel did not inform the trial
                     court that Appellant requested a
                     jury trial or request that Appellant


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                    be colloquyed [sic]. He did not
                    even inform Appellant that he was
                    entitled to a jury trial since the trial
                    was on the misdemeanor charge.

               e.   Counsel failed to request that
                    Judge Charles recuse himself after
                    Appellant informed counsel that
                    Judge Charles was biased against
                    him, based on earlier experiences
                    with the Judge.

               f.   Counsel did not submit for the
                    Court’s consideration numerous
                    character letters in his possession.

               g.   Counsel     did   not    challenge
                    Appellant’s conviction as against
                    the weight of the evidence even
                    though the video showed someone
                    other than Appellant committing
                    the crime.

               h.   Counsel did not notify Appellant
                    that the Commonwealth had filed a
                    notice to modify sentence, or that
                    the Court had granted a “Motion
                    for Rule to Show Cause” and
                    ordered counsel to respond to the
                    Commonwealth’s motion by May 5,
                    2014.

               i.   Counsel     lied    to     Appellant,
                    representing that he would file an
                    answer to the Commonwealth’s
                    Motion to Modify, and then,
                    inexplicably, never filed one. With
                    no answer on Appellant’s behalf,
                    the      Court      granted       the
                    Commonwealth’s Motion to Modify
                    Sentence     in  response     to    a
                    Commonwealth “Motion to Make
                    Rule Absolute.”



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                  j.    Counsel failed to object to or
                        preserve the issues raised by
                        Appellant for the first time on
                        appeal.

Appellant’s brief at 6-10.

      Appellant’s first two issues go to the weight of the evidence. We find

this challenge waived for failure to raise it before the trial court, a

mandatory requisite to preserve a weight of the evidence challenge for

appellate review. Pa.R.Crim.P. 607; Commonwealth v. McCall, 911 A.2d

992 (Pa.Super. 2006). The docket bears no notation showing that appellant

filed a post-sentence motion, and a review of the certified record discloses

no post-sentence motion filed by appellant raising a weight of the evidence

challenge. Furthermore, our review of the notes of testimony reveals that

no such motion was made orally after the verdict was rendered. Therefore,

this issue has been waived.

      To the extent that appellant presents a sufficiency of the evidence

claim, we find that no relief is due. There is sufficient evidence to sustain a

conviction when the evidence admitted at trial, and all reasonable inferences

drawn therefrom, viewed in the light most favorable to the Commonwealth

as verdict-winner, are sufficient to enable the fact-finder to conclude that

the Commonwealth established all of the elements of the offense beyond a

reasonable doubt. Commonwealth v. Markman, 916 A.2d 586, 597 (Pa.

2007).   The Commonwealth may sustain its burden “by means of wholly

circumstantial evidence.” Id. at 598. Further, we note that the entire trial


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record is evaluated and all evidence received against the defendant is

considered, being cognizant that the trier of fact is free to believe all, part,

or none of the evidence. Id.

      A person commits criminal mischief when he “intentionally damages

real or personal property of another[.]”      18 Pa.C.S.A. § 3304(a)(5).   This

court has noted that pecuniary damage is not an element of Section 3304;

rather, it is a part of the grading of the offense. Hence, pecuniary loss need

not be shown where criminal mischief is charged as a summary offense.

      Appellant argues that he was not the person involved in the

commission of the crime. The trial court, however, concluded he was guilty

of criminal mischief based on the surveillance video of the person damaging

the victim’s car. The court had an opportunity to witness appellant’s distinct

walk and compare his facial profile on the witness stand to the profile on the

video.    Additionally, Steif identified appellant as the person in the

surveillance video. The evidence, viewed in the light most favorable to the

Commonwealth, was sufficient to sustain appellant’s conviction for criminal

mischief beyond a reasonable doubt.

      Appellant next argues that he was denied a constitutional right to a

trial by jury.    However, there is no right to a trial by jury.           See

Commonwealth v. McMullen, 961 A.2d 842 (Pa. 2008). “The right to a

jury trial under the Sixth Amendment to the United States Constitution and

Article 1, Sections 6, 9 of the Pennsylvania Constitution applies when a



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criminal defendant faces a sentence of imprisonment exceeding six months.”

Id.    Appellant was charged with a summary offense, the maximum

punishment for which is 90 days’ incarceration.            Therefore, we reject

appellant’s argument.

       We likewise find no merit to appellant’s unfounded claim that the

district   attorney   committed   gross   prosecutorial   misconduct   when   he

amended the charge from a misdemeanor to a summary charge.

       Appellant’s sixth issue avers that the surveillance video should not

have been admitted into evidence as it was not properly authenticated. We

agree with the Commonwealth that this claim is waived for failure to object

to the video’s admission during trial. Pa.R.A.P. 302(a); Commonwealth v.

Blassingale, 581 A.2d 183, 191 (Pa.Super. 1990).

       In his seventh claim, appellant argues that the sentence imposed was

illegal and not supported by evidence.        (Appellant’s brief at 59.)   In the

context of criminal proceedings, an order of “restitution is not simply an

award of damages, but, rather, a sentence.” Commonwealth v. C.L., 963

A.2d 489, 494 (Pa.Super. 2008) (citation omitted). An appeal from an order

of restitution based upon a claim that a restitution order is unsupported by

the record challenges the legality, rather than the discretionary aspects, of

sentencing.    Commonwealth v. Redman, 864 A.2d 566, 569 (Pa.Super.

2004), appeal denied, 875 A.2d 1074 (Pa. 2005). “[T]he determination as

to whether the trial court imposed an illegal sentence is a question of law;



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our standard of review in cases dealing with questions of law is plenary.”

Commonwealth v. Hughes, 986 A.2d 159, 160 (Pa.Super. 2009) (citation

omitted).

     Both the Sentencing Code and Crimes Code contain provisions that

govern the imposition of restitution. The Sentencing Code provides that “the

court shall order the defendant to compensate the victim of his criminal

conduct for the damage or injury that he sustained.”               42 Pa.C.S.A.

§ 9721(c).     The statute governing restitution for injuries to person or

property, 18 Pa.C.S.A. § 1106, provides that:

             (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.

             ....

                    (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) and



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                              such other matters as it
                              deems appropriate.

           ....

                  (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.

18 Pa.C.S.A. § 1106.

           When fashioning an order of restitution, the lower
           court must ensure that the record contains the
           factual basis for the appropriate amount of
           restitution. Commonwealth v. Pleger, 934 A.2d
           715, 720 (Pa.Super.2007). The dollar value of the
           injury suffered by the victim as a result of the crime
           assists the court in calculating the appropriate
           amount of restitution.     Id.   The amount of the
           restitution award may not be excessive or
           speculative. Commonwealth v. Rush, 909 A.2d
           805, 810 (Pa.Super.2006), reargument denied.

Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa.Super. 2010).

     According to appellant, the trial court ordered him to pay $1,598.22

based on an “unsigned repair estimate the victim provided to the

prosecution.”   (Appellant’s brief at 60.)     Appellant argues there was no

evidence as to the extent of the June 15th damage to the vehicle, and he



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points out that the victim acknowledged this was not the first time the

vehicle was vandalized; thus, appellant claims there was no representation

that this estimate provided only covered damage done to the vehicle on

June 15th. (Id. at 60-63.)

      We disagree. It is clear from the sentencing hearing transcripts that

the court’s sentence of restitution was not speculative and finds support in

the record.    The figure was obtained by the testimony of the victim, and

despite appellant’s claim to the contrary, we glean nothing speculative about

the trial court’s calculation.   Appellant fails to proffer any authority which

would preclude the trial court from relying solely on the victim’s calculation

of loss where, as in the case before us, the trial court deemed such

testimony credible. Accordingly, we conclude that the trial court did not err

in the imposition of restitution.

      Finally, appellant raises numerous issues regarding the ineffective

assistance of trial counsel.2       However, appellant did not preserve for

purposes of Pa.R.A.P. 302(a) the claims of ineffective assistance of counsel

by raising the claims in the court below.       Thus, these issues have been

waived.



2
   We find that appellant’s claim concerning whether the trial court violated
Pa.R.Crim.P. 602 when it modified the restitution amount without his
knowledge or an opportunity to be heard is belied by the record. It is also
actually raised as a claim of ineffective assistance of counsel; in support of
this issue, appellant avers his attorney did not inform him of the matter and
“lied” to him. (Appellant’s brief at 64-65.)


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      Furthermore, ineffective assistance of counsel claims are generally

deferred to collateral review proceedings, with the exception of certain

circumstances not present in the instant case.        See Commonwealth v.

Arrington, 86 A.3d 831 (Pa. 2014). To be eligible for such relief under the

Post Conviction Relief Act (“PCRA”), a petitioner must be currently serving a

sentence    of   imprisonment,    probation,    or   parole.     42    Pa.C.S.A.

§ 9543(a)(1)(i). As appellant is appealing a summary conviction, for which

he was sentenced to pay restitution, we find that he is not eligible for relief

under the PCRA. In Commonwealth v. Straub, 936 A.2d 1081 (Pa.Super.

2007), appeal denied, 963 A.2d 470 (Pa. 2009), we held that a defendant

convicted of a summary offense and not incarcerated or placed on probation

is not entitled to litigate claims of ineffective assistance of counsel on direct

appeal even though he may not be eligible for PCRA relief. Id. at 1083. The

Straub court stated that:

            In light of [Commonwealth v. O’Berg, 880 A.2d
            597 (Pa. 2005)] majority’s express disapproval of
            the jurisprudential “short sentence” exception to
            [Commonwealth v. Grant, 813 A.2d 726 (Pa.
            2002)] and particularly in light of Justice Castille’s
            cogent, thoughtful and well-reasoned concurring
            opinion in O’Berg, we conclude that, in the case at
            bar, Appellant’s claims of ineffective assistance of
            counsel may not be reviewed on direct appeal before
            this Court.

Id. at 1083-1084. Consequently, the law does not provide appellant with an

avenue to pursue his ineffective assistance of summary trial counsel claims.




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See Commonwealth v. Reigel, 75 A.2d 1284, 1288-1289 (Pa.Super.

2013).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/20/2015




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