J-S51035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RODNEY ROONEY,

                            Appellant                No. 2183 EDA 2014


             Appeal from the Judgment of Sentence June 25, 2014
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0007611-2013


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

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 25, 2015

        Appellant, Rodney Rooney, appeals from the judgment of sentence

imposed following his bench conviction of theft by unlawful taking or

disposition of movable property.1 Appellant challenges the sufficiency of the

evidence and the trial court’s sentence of restitution.2       We affirm the

judgment of sentence in part and vacate in part.

        The relevant factual and procedural history of this case is as follows.

In December 2011, the victim, Erica Schiff (Schiff), moved into a rental

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3921(a).
2
  An award of restitution is a sentence. See 18 Pa.C.S.A. § 1106(a); see
also Commonwealth v. Veon, 109 A.3d 754, 762 (Pa. Super. 2015).
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home in Philadelphia advertised on Craigslist by Appellant, who represented

that he was the landlord.3 Schiff rented a private bedroom on the second

floor on a month-to-month basis for $550.00 per month, pursuant to an oral

agreement with Appellant.          Three other females rented bedrooms in the

house. Although Appellant initially stated that he would check on the house

periodically, Schiff and her roommates noticed that he was at the house

constantly, and it appeared that he lived in the basement.

       On January 3, 2013, Schiff returned home to find that the lock on the

front door had been replaced with an electronic lock. She was unable to get

into the home or reach Appellant by phone, email, or by banging on the door

and basement window.          Schiff called the police and Appellant opened the

door and let her in when they arrived. After this incident, Schiff called the

police on multiple occasions because Appellant repeatedly changed the

electronic passcode, locking her out. On the advice of police, she installed

her own deadbolt lock on her bedroom door. On January 23, 2013, Schiff

called police because there was no hot water or utilities, and a new male

tenant had moved into the house without her prior knowledge.

       On February 6, 2013, Schiff arrived at the home and discovered that

various items she stored in the basement were missing. The items included

handmade costumes, sewing machines, computers, vintage guitars, and

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3
  Appellant testified that he leased the property and the owner permitted
him to sublease it. (See N.T. Trial, 4/28/14, at 51-52).



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musical equipment.4 Schiff and her friend, Tim Seinfield, also found that the

key to the deadbolt on her bedroom door did not work.                  When Seinfield

indicated that he would kick down the bedroom door, Appellant came

upstairs with a camera and warned them not to do so because it was not

their property. When Schiff returned to the house the next day to retrieve

her belongings and move out, she contacted the police again because the

lock on the front door had been changed.            Police observed pry marks on

Schiff’s bedroom door and they remained at the scene while she packed her

belongings. Her bedroom had been ransacked and certain items, including

her bed, desk, and electronics, had been taken from the room. At that time,

no one was living in the house except Appellant and Schiff.

       Schiff notified the property management company of the theft.               In

response, Appellant sent her an email advising that she had abandoned the

property on January 30, 2013, and that he, as landlord, was authorized to

remove     her   possessions      within   ten   days   of   that   date.   Appellant

subsequently was arrested.

       On April 28, 2014, the case proceeded to a bench trial, and the court

found Appellant guilty of the above-stated offense. On June 25, 2014, the




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4
  Schiff is in the music and entertainment industry and she used many of
these items for work. (See N.T. Sentencing Hearing, 6/25/14, at 7; N.T.
Trial, 4/28/14, at 28).



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court sentenced him to five years’ reporting probation and ordered him to

pay $17,000.00 in restitution. This timely appeal followed.5

       Appellant raises the following questions for our review:

       I.     Whether the verdict was contrary to law as based on
       insufficient evidence[?]

       II.    Whether the [trial] court erred in awarding restitution[?]

(Appellant’s Brief, at 7).

       In his first issue, Appellant challenges the sufficiency of the evidence

to support his theft conviction.6          (See Appellant’s Brief, at 12-13).   He

argues that there was no evidence demonstrating that he removed Schiff’s

property from her bedroom or the basement, where there were multiple

tenants living at the property and she did not witness him take the items.

(See id. at 13). This issue lacks merit.

       Our standard of review 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
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5
  Pursuant to the trial court’s order, Appellant filed a concise statement of
errors complained of on appeal on December 12, 2014. See Pa.R.A.P.
1925(b). The trial court filed an opinion on December 23, 2014. See
Pa.R.A.P. 1925(a).
6
  Appellant also states that he challenges the evidence supporting his
receiving stolen property conviction.      (See Appellant’s Brief, at 12).
However, the trial court found him not guilty of this offense. (See Criminal
Docket, at 3; N.T. Trial, 4/28/14, at 72).




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            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 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).

      A defendant is guilty of theft by unlawful taking of movable property

“if he unlawfully takes, or exercises unlawful control over, moveable

property of another with intent to deprive him thereof.”       18 Pa.C.S.A. §

3921(a).   “Proof of Theft by Unlawful Taking requires three elements: (1)

unlawful taking or unlawful control over movable property; (2) movable

property belongs to another; and (3) intent to deprive (permanently).”




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Commonwealth v. Young, 35 A.3d 54, 62 (Pa. Super. 2011), appeal

denied, 48 A.3d 1249 (Pa. 2012) (citations omitted).

      Here, the evidence established that Appellant continuously resided at

the house and that he repeatedly changed the locks, denying Schiff access

to it and her belongings. (See N.T. Trial, 4/28/14, at 14-15, 17-18, 20, 25,

27, 49). Although multiple tenants initially rented the bedrooms, Appellant

and Schiff were the only individuals residing at the property when Schiff’s

belongings were taken. (See id. at 10, 14, 27). When Schiff reported the

theft to the property management company, Appellant notified her via email

that “he had every right to remove [her] possessions” as landlord because

she had “abandoned” the house. (Id. at 27; see id. at 28-29).

      Based on the foregoing, viewing the evidence in the light most

favorable to the Commonwealth, see Harden, supra 111, we determine

that the trial court properly found that the evidence is sufficient to sustain

Appellant’s conviction for theft by unlawful taking. Specifically, we conclude

that the evidence established that Appellant unlawfully took Schiff’s property

with the intent to deprive her of it permanently. See Young, supra at 62.

Accordingly, Appellant’s first claim does not merit relief.

      In his second issue, Appellant argues that the trial court’s sentence of

$17,000.00 in restitution was speculative and not supported by the record.

(See Appellant’s Brief, at 14-15).       After review of the record, we are

constrained to agree.




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      Preliminarily, we note “[a]n 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. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010)

(citation omitted).        “[T]he determination as to whether the trial court

imposed an illegal sentence is a question of law; our standard of review in

cases dealing with questions of law is plenary.” Id. (citation omitted).

      Section 1106 of the Crimes Code mandates that restitution be paid

“[u]pon conviction for any crime wherein property has been stolen,

converted or otherwise unlawfully obtained. . . .” 18 Pa.C.S.A. § 1106(a).

The court must order full restitution “[r]egardless of the current financial

resources of the defendant, so as to provide the victim with the fullest

compensation for the loss.” Id. at § 1106(c)(1)(i).

             A court must be guided by the following when computing
      restitution:

                   Although restitution does not seek, by its
             essential nature, the compensation of the victim, 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.        A restitution
             award must not exceed the victim’s losses.             A
             sentencing court must consider the victim’s injuries,
             the victim’s request as presented by the district
             attorney and such other matters as the court deems
             appropriate. The court must also ensure that the
             record contains the factual basis for the
             appropriate amount of restitution. In that way,
             the record will support the sentence.

Veon, supra at 772 (citation omitted) (emphasis added).


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       Additionally,

              [i]t is the Commonwealth’s burden of proving its
       entitlement to restitution. . . . The amount of the restitution
       award may not be excessive or speculative. It is well-settled
       that [a]lthough it is mandatory under section 1106(c) to award
       full restitution, it is still necessary that the amount of the full
       restitution be determined under the adversarial system with
       considerations of due process.

Atanasio, supra at 1183 (Pa. Super. 2010) (quotation marks and case

citations omitted).

       Here, the trial court conducted a sentencing hearing at which the

Commonwealth advised that, immediately after the theft, Schiff provided an

inventory list for the missing items, with the value totaling $46,000.00.

(See N.T. Sentencing, 6/25/14, at 4). The Commonwealth then asked her

to assign a current market value to each item using the internet, and it

adjusted the total value downward to $31,000.00. (See id. at 4). Defense

counsel noted that the victim had not provided any non-speculative

documentary proof of the value of the items, in the form of receipts, tax

returns, or credit card statements.            (See id. at 4-6).   The court, without

providing any explanation as to how it computed the amount, ordered

Appellant to pay $17,000.00 in restitution.            (See id. at 9).    In its Rule

1925(a) opinion, the court likewise did not explain how it decided on the

specific award of $17,000.00. (See Trial Court Opinion, 12/23/14, at 13).7
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7
  The Commonwealth concedes that “[i]t is not entirely clear on this limited
record how the court decided on $17,000.” (Commonwealth’s Brief, at 20).



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        After review, we are constrained to agree with Appellant that the trial

court’s sentence of $17,000.00 in restitution is speculative and not

supported by the record.      See Veon, supra at 772; Atanasio, supra at

1183.     Accordingly, we vacate the judgment of sentence insofar as it

pertains to restitution only, and remand for a hearing to determine an

amount of restitution consistent with the evidence.       We affirm Appellant’s

judgment of sentence in all other aspects.

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

remanded      for   further   restitution   proceedings   consistent   with   this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2015




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