J-S31001-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DAKOTA GARVEY                            :
                                          :
                    Appellant             :   No. 218 MDA 2020

    Appeal from the Judgment of Sentence Entered September 26, 2019
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0001750-2019


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 25, 2020

      Dakota Garvey appeals from judgment of sentence of a one-dollar fine

and related restitution, which was imposed following his conviction for criminal

mischief graded as a summary offense. We affirm.

      The trial court summarized the facts as follows:

      On Friday, March 22, 2019, [Appellant] arrived at his mother's
      home, where she lived with her paramour Steven Fabrick. The
      home was a rental property. At trial, Mr. Fabrick testified that
      [Appellant] was banging and kicking the front door of his
      residence. Ultimately[,] a window pane of glass was shattered
      and there was some damage to the door. Mr. Fabrick testified
      that [Appellant] was unwelcome at the home and that he
      communicated this to [Appellant] while he was attempting to gain
      (unsuccessful) entry. Mr. Fabrick testified the value of the
      damage to the door, based on his experience in home repair, was
      about $600 depending on who fixes it. The door was not fixed.

Trial Court Opinion, 3/6/20, at 2.
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      Appellant was charged with one count of criminal trespass and two

counts of criminal mischief under 18 Pa.C.S. § 3304(a)(5): one a summary

offense, and the other a second-degree misdemeanor. The criminal trespass

charge was dismissed at the preliminary hearing; the two counts of criminal

mischief were held over for court. Prior to trial, the Commonwealth withdrew

the summary criminal mischief charge.

      At the close of the Commonwealth’s case, Appellant moved for judgment

of acquittal on the sole charge of second-degree misdemeanor criminal

mischief. See N.T. Trial, 9/26/19, at 94. Appellant argued that the amount

of the loss was an element of second-degree misdemeanor criminal mischief,

the only charge in the criminal information, and that the Commonwealth had

failed to establish a loss exceeding $1,000. Id. at 95-96. The Commonwealth

conceded that the evidence was insufficient for a second-degree misdemeanor

grading of the offense, but maintained that it was sufficient for a third-degree

misdemeanor grading. The trial court granted the motion for judgment of

acquittal as to criminal mischief graded as a second-degree misdemeanor, but

denied the motion as to the lesser-graded offenses of third-degree

misdemeanor and summary criminal mischief.

      The case proceeded to verdict, and the jury found Appellant guilty of

criminal mischief. The jury then determined that the damages amounted to

$500 or less, consistent with the summary offense of criminal mischief.

Appellant filed a timely post-sentence motion for judgment of acquittal, which

the court denied on January 6, 2020. Appellant timely appealed, and the trial

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court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal within twenty-one days, or suffer waiver. Appellant,

represented by counsel, filed an untimely Rule 1925(b) concise statement,

and contemporaneously filed a motion seeking leave to file his concise

statement nunc pro tunc. Although there was no ruling on the latter motion,

the trial court addressed Appellant’s issue in its Rule 1925(a) opinion.

      Appellant presents one issue for our review: “Whether the trial court

erred in denying Appellant’s motion for judgment of acquittal and post

sentence motion as the proof of damages, which is an element of the crime of

criminal mischief when graded as a misdemeanor of the second degree, and

the Commonwealth failed to amend the criminal information?” Appellant’s

brief at 5 (unnecessary capitalization omitted).

      Preliminarily, we must address whether Appellant has waived his sole

issue on appeal by failing to file a timely Rule 1925(b) concise statement of

errors complained of on appeal. As the trial court noted, compliance with Rule

1925(b) is a bright-line rule, and waiver is automatic even if the

Commonwealth does not assert waiver, or the trial court addresses the issues

in its opinion. Commonwealth v. Butler, 812 A.2d 631 (Pa. 2002); see

also Pa.R.A.P. 1925(b)(4)(vii).      However, the trial court relied upon

Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009), for the

proposition that failure by counsel to file a timely Rule 1925(b) concise




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statement constitutes ineffectiveness per se, and since it could address the

issue identified in the untimely concise statement, it did so.

      The trial court’s treatment of the untimely-filed Rule 1925(b) concise

statement of errors was proper. We have held that counsel’s failure to file a

Rule 1925(b) concise statement is presumptively prejudicial and clear

ineffectiveness, as it deprives an appellant of meaningful appellate review.

See Commonwealth v. McBride, 957 A.2d 752, 756 (Pa.Super. 2008). In

that situation, the usual remedy is to remand for the filing of Rule 1925(b)

statement nunc pro tunc and for the trial court’s preparation of a Rule 1925(a)

opinion. See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa.Super.

2008). However, as we recognized in Burton, supra, counsel’s untimely filing

of a Pa.R.A.P. 1925(b) statement on behalf of a defendant seeking to appeal

is the equivalent of a complete failure to file because it results in waiver of all

issues on appeal without any reasonable basis. Thus, where a statement has

been filed, albeit late, but the trial court has issued an opinion addressing the

issues raised, remand would not serve any purpose. Thus, we held in Burton

that, in such circumstances, this Court may decide the appeal on the merits.

      Such is the case herein. The issue presented in Appellant’s untimely-

filed Rule 1925(b) concise statement was addressed by the trial court in its

Rule 1925(a) opinion. Hence, remand for the filing of a statement and opinion

is unnecessary, and we may proceed to review Appellant’s claim.




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      Appellant complains on appeal that the trial court erred in denying his

motion for judgment of acquittal. Our standard of review of such a claim is

as follows: “A motion for judgment of acquittal challenges the sufficiency of

the evidence to sustain a conviction on a particular charge, and is granted

only in cases in which the Commonwealth has failed to carry its burden

regarding that charge.”    Commonwealth v. Emanuel, 86 A.3d 892, 894

(Pa.Super. 2014). Appellant claims that the Commonwealth’s evidence was

insufficient to prove the crime charged, i.e., criminal mischief, a misdemeanor

of the second degree. See Commonwealth v. Stahl, 175 A.3d 301, 302

(Pa.Super. 2017). When we review a sufficiency challenge,

      The standard we apply . . . 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
      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 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. Edwards,           ___A.3d___. 2020 PA Super 37, 2020 WL

702571, at *5 (Pa.Super. Feb. 12, 2020) (citation omitted).


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      Appellant contends that the amount of the pecuniary loss is an element

of the offense of criminal mischief. In support of that position, he directs our

attention to Commonwealth v. Kearney, 225 A.3d 590(Pa.Super. 2019),

where this Court vacated the conviction of criminal mischief graded as a third-

degree misdemeanor as the evidence was insufficient to support a finding of

damages in excess of $500. He also relies upon Commonwealth v. Battiato,

619 A.2d 359 (Pa.Super. 1993) (abrogated on unrelated grounds) (citing In

re Gillen, 344 A.2d 706, 708 (Pa.Super. 1975)), for the proposition that when

criminal mischief is charged as a felony or misdemeanor, the monetary value

of the damage caused by the defendant is an essential element of the offense.

Appellant maintains that since he was charged in the criminal information with

criminal mischief in the second degree, requiring proof of property damage of

$1000 or more, and the Commonwealth did not offer such proof or amend the

criminal information, judgment of acquittal should have been granted.

      The Commonwealth counters that the summary offense of criminal

mischief is a lesser-included offense of second-degree misdemeanor criminal

mischief, and that it did not need to be charged in the information.       See

Commonwealth’s brief at 7.       It directs our attention to our decision in

Commonwealth v. Houck, 102 A.3d 443 (Pa.Super. 2014), which relied

upon the Supreme Court’s earlier decision in Commonwealth v. Sims, 919

A.2d 931 (Pa. 2007). In Sims, the Court reaffirmed that a defendant can be

convicted of a crime that was not actually charged when the uncharged


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offense is a lesser-included offense of the charged crime. The rationale for

the rule is that “the defendant does not need separate notice to defend against

[a lesser-included offense . . . ] because the defense that he prepares against

the offenses charged will necessarily attempt to refute the Commonwealth's

evidence of the lesser offenses.”   Id. at 941-42. See also Commonwealth

v. Pemberth, 489 A.2d 235, 237 (Pa.Super. 1985) (holding that notice can

be “achieved in one of two ways: either the Commonwealth will give an

accused express notice by charging him with the less culpable offense or it

will give him implicit notice through the information where the proven, but

uncharged crime is a lesser-included offense of the charged, but unproven,

offense”).

      The trial court applied a slightly different analysis. It reasoned that the

difference between misdemeanor criminal mischief and summary criminal

mischief lies not in the elements of the crime, but in the gradation of the

offense proven, which is determined by the pecuniary amount of damages.

See Trial Court Opinion, 3/9/20, at 3. With respect to criminal mischief, the

trial court noted that, “[n]one of the factual scenarios listed in 18 Pa.C.S.A.

§3304(a)(1) through (a)(6) contains the element of valuation of the damage

or loss.” Id. at 4. It analogized that statute to theft offenses, where the

grade of the offense is determined by the value of the items stolen.

      The trial court rejected Appellant’s contention that proof of damages

became an element of the crime because the criminal information charged the


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criminal mischief as a misdemeanor of the second degree, and that by failing

to meet the threshold value, the defendant was entitled to an acquittal. The

court reasoned that Appellant was not prejudiced by facing criminal liability

for criminal mischief graded as a summary offense or a third-degree

misdemeanor, as any defense he had to the crime charged would have been

identical to any defense he would have had to the charge of the summary

offense, citing Commonwealth v. Farmer, 366 A.2d 748 (Pa.Super. 1976)

(holding crime of attempted theft of the contents of an automobile is a lesser-

included offense of the crime of attempted theft of an automobile).         The

conduct and the intent element were the same.        See Trial Court Opinion,

3/9/20, at 5. The only difference was the grading of the offense. Id.

      The criminal mischief statute provides in pertinent part:

      (a)   Offense defined. — A person is guilty of criminal mischief if
            he:

                  ....


            (5) intentionally damages real or personal property of
            another; or


                  ....

      (b)   Grading. — Criminal mischief is a felony of the third degree
            if the actor intentionally causes pecuniary loss in excess of
            $5,000, or a substantial interruption or impairment of
            public communication, transportation, supply of water, gas
            or power, or other public service. It is a misdemeanor of
            the second degree if the actor intentionally causes
            pecuniary loss in excess of $1,000, or a misdemeanor of
            the third degree if he intentionally or recklessly causes


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            pecuniary loss in excess of $500 or causes a loss in excess
            of $150 for a violation of subsection (a)(4). Otherwise
            criminal mischief is a summary offense.

18 Pa.C.S. § 3304.

     As the statutory language indicates, proof of pecuniary loss is not

required in order to support a conviction of criminal mischief graded as a

summary offense. One is guilty of the summary offense of criminal mischief

if one “intentionally damages real or personal property of another,” even

without proof of any pecuniary loss.      The amount of the pecuniary loss

determines the grading of the offense.

     Herein, the evidence of record supports Appellant’s conviction of

criminal mischief, a summary offense. Evidence was adduced from which the

jury could reasonably conclude that Appellant intentionally damaged the door

belonging to his mother’s landlord, but that the pecuniary loss did not exceed

$500. Such was not the case in Kearney, relied upon by Appellant. Although

Kearney was charged with third-degree felony criminal mischief, the court

found him guilty of third-degree misdemeanor criminal mischief. On appeal,

Kearney presented two alleged errors: first, that the court impermissibly

amended the charge at the end of trial; and, second, that the evidence did

not support a finding of damages of at least $500, which was required to

sustain the conviction as a third-degree misdemeanor.

     In Kearney, this Court did not address the propriety of the trial court

sua sponte convicting Kearney of third-degree misdemeanor criminal mischief


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instead of the charged felony-graded offense.          Rather, we vacated his

conviction of the misdemeanor criminal mischief because there was

insufficient evidence of damages in excess of $500 to support it. We found

that the Commonwealth did not present evidence proving beyond a reasonable

doubt windshield damage of at least $500. Thus, Kearney is inapposite as

the evidence in the instant case is legally sufficient to support Appellant’s

conviction of criminal mischief graded as a summary offense, and Appellant

does not argue to the contrary.

      Appellant’s reliance upon Battiato is similarly misplaced. Therein, the

trial court did precisely what the trial court did herein: it reduced the grade of

offense of criminal mischief from a second-degree misdemeanor to a summary

offense in response to a defense demurrer that “the Commonwealth ha[d]

failed to prove that the damages were in excess of $ 1,000.” Battiato, supra

at 363. In contrast to the situation before us, Battiato did not challenge the

court’s action in this regard.    Instead, she argued that the evidence was

insufficient to sustain her conviction because the Commonwealth had not

presented any competent evidence as to the value of the damages, which she

maintained was an essential element of the crime. This Court held that the

amount of damage to property was not an element of the summary offense of

criminal mischief of which the appellant was found guilty, and thus, her

sufficiency challenge failed.




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      Appellant’s complaint here involves the issue we did not reach in

Kearney, and which was not before us in Battiato. He contends that the

trial court should have granted judgment of acquittal and dismissed the case

entirely when the Commonwealth’s proof of pecuniary loss fell short of that

required for the crime charged: criminal mischief graded as a second-degree

misdemeanor. He faults the trial court for ruling that the evidence adduced

was sufficient to support a conviction of the lesser-graded offenses of either

third-degree misdemeanor or summary criminal mischief, although the

Commonwealth did not seek to amend the information. Appellant contends

that he could not be convicted of summary criminal mischief when he was

charged   with   second-degree    misdemeanor     criminal   mischief,   absent

amendment of the information.

      Appellant’s arguments herein mirror those of the appellant in Houck,

supra. Therein, the appellant was charged with one count of driving under

the influence (“DUI”) under § 3802(c), which required proof beyond a

reasonable doubt that the appellant had a blood alcohol concentration (“BAC”)

of .16% or higher.    The jury found that his BAC was between 0.1% and

0.159%, which was inconsistent with a conviction under the charged section

of the DUI statute.    As herein, the appellant complained that since the

Commonwealth did not move to amend the information to include the lower

BAC levels, the jury’s finding precluded conviction under § 3802(c) as a matter

of law, because the jury effectively convicted the appellant of § 3802(b) DUI,


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an offense not charged. Thus, the appellant argued that the jury’s factual

finding of a BAC of 0.10% to 0.159% obligated the court to enter a “not guilty”

verdict on the only charge in the information.    Alternatively, the appellant

maintained that the jury specifically determined that the evidence did not

prove one of the necessary elements of § 3802(c) as charged, i.e., a BAC of

0.16% or higher, and thus, the verdict should have been set aside.

      The Commonwealth in Houck articulated the same position it advances

herein. It argued that a guilty verdict on § 3802(b) DUI was permissible as a

conviction of a “lesser-included offense.” Under established Pennsylvania law,

the Commonwealth argued that a defendant can be convicted of a crime that

was not actually charged when the uncharged offense is a lesser-included

offense of the charged crime, as the defendant would have been put on notice

of the charges against him and could adequately prepare a defense.        See

Sims, supra at 938.

      In Houck, this Court determined that the DUI offense of which the

appellant was convicted was a lesser-included offense of the crime charged,

and that amendment of the criminal information was not required because the

appellant had fair notice and an opportunity to present an adequate defense.

We recently reaffirmed our reasoning in Houck in Commonwealth v.

Bickerstaff, 204 A.3d 988, 995 (Pa.Super. 2019) (holding Pa.R.Crim.P. 560

governing content of a criminal information only requires “a plain and concise

statement of the essential elements of the offense substantially the same as


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or cognate to the offense alleged in the complaint” and reaffirming that a

defendant can be convicted of an uncharged lesser-included offense if he had

“fair notice and an opportunity to present an adequate defense”).

      After the Supreme Court decisions in Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) (holding that any “facts that increase the prescribed

range of penalties to which a criminal defendant is exposed” are elements of

the crime), and Alleyne v. United States, 570 U.S. 99 (2013) (“If a fact was

by law essential to the penalty, it was an element of the offense.”), we find

the distinction between elements of the offense, and facts essential to the

range of penalties to which a defendant is exposed, to be of little consequence.

Treating grading factors as elements of the crime, as Appellant urges us to

do, we utilize the three approaches approved in Sims, supra, for determining

whether the summary offense of criminal mischief is a lesser-included offense

of the charged second-degree misdemeanor criminal mischief.

      Appellant committed the conduct constituting either offense: he

intentionally damaged the door belonging to another. If we use the statutory

elements approach to lesser-included offenses, it is not possible to commit the

second-degree misdemeanor criminal mischief without also committing the

summary offense. Under the cognates-pleading approach, the elements of

the misdemeanor include the elements of the summary offense. Finally, the

evidentiary approach examines the actual evidence at trial to assess the

relationship between the greater and lesser charges. As we reasoned in


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Houck, “[t]he lesser offense may have elements that are distinct from the

greater offense and still be considered a lesser-included offense, as long as

the evidence presented at trial to prove the greater offense actually

establishes the elements of the lesser offense.”      Houck, supra at 450

(quoting Sims, supra at 938).         Evidence of intentional damage to the

property of another resulting in a pecuniary loss exceeding $1,000, which was

the proof necessary to establish criminal mischief graded as a second-degree

misdemeanor, would also establish the lesser-included offenses of third-

degree misdemeanor criminal mischief (a pecuniary loss in excess of $500)

and the summary offense of criminal mischief.

      Hence, the trial court did not err in denying judgment of acquittal. The

jury was properly permitted to consider the lesser-included offenses of

criminal mischief graded as third-degree misdemeanor and summary

offenses, without formal amendment of the criminal information. The trial

court instructed the jury on the elements of the pertinent section of the

criminal mischief statute charged in the information: “intentional conduct

causing damage to property of another.” 18 Pa.C.S. § 3304(5). After the jury

concluded Appellant was guilty of the conduct constituting the offense, it

determined that the pecuniary loss was $500 or less. Based on the jury’s

factual findings, the court properly graded the offense as a summary offense.

Since the evidence was sufficient to sustain the conviction of that lesser-

included offense, no relief is due.


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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/25/2020




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