Commonwealth v. WeirCommonwealth v. Weir
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
Christopher Robert Weir appeals from the judgment of sentence imposed following his convictions of criminal mischief and harassment. We affirm.
The trial court summarized the relevant facts as follows:
On April 13, 2016, Jacob Korimko was working as a mechanic at a garage he operated. While he was working on a vehicle, [Appellant] entered the garage and began shouting at Mr. Korimko, claiming that Mr. Korimko owed him money. Mr. Korimko vehemently denied that he owed [Appellant] any money. [Appellant] became agitated and took a very aggressive stance toward Mr. Korimko. [Appellant] continued shouting at Mr. Korimko in a threatening manner and Mr. Korimko feared that [Appellant] was about to physically assault him. Mr. Korimko stepped back away from [Appellant] and [Appellant] then swung his fist and contacted the front headlight/cowl area of Mr. Korimko‘s 2012 Kawasaki 600 motorcycle. As a result, the entire headlight assembly was damaged. The cowl was caved in. The headlight was broken and the two side frames were destroyed. The main support for the headlight was also broken along with the entire gauge cluster. Mr. Korimko paid $1,4[92]1 to have the parts replaced. He testified that he had received an additional estimate of $1,000 to have the parts painted to match the motorcycle‘s color. However, he could not afford to pay the additional $1,000 so he did not have the work done prior to the trial.
Trial Court Opinion, 6/22/17, at 2.2
After a non-jury trial, Appellant was found guilty of criminal mischief and the
the date of trial. The trial court denied the post-sentence motion on October 27, 2016. Appellant filed a timely notice of appeal and a court-ordered
Appellant raises the following issues for our review:
- Were the guilty verdicts of criminal mischief and harassment rendered against the weight of the evidence?
- Alternatively, was the sentencing order imposing restitution in the amount of $2,000 speculative and unsupported by the record?
Appellant‘s brief at 5.
In his first issue, Appellant challenges the weight of the evidence supporting his convictions for criminal mischief and harassment. Initially, we determine whether Appellant preserved his weight challenges for our review.
A challenge to the weight of the evidence must be preserved either in a timely post-sentence motion, a written motion before sentencing, or orally prior to sentencing. See
On appeal, Appellant argues that the guilty verdicts for both criminal mischief and harassment were against the weight of the evidence. Our review of the record indicates that Appellant‘s challenge to the weight of the evidence, as presented in his post-sentence motion, was limited to his criminal mischief conviction. See Post-Sentence Motion, 10/26/16, at 1-3. Thus, we deem his challenge to the weight of his harassment conviction waived. See
Turning to Appellant‘s criminal mischief conviction, the following legal principles apply when a challenge to the weight of the evidence supporting a conviction is presented to the trial court:
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because
the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (cleaned up).
An appellate court‘s standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court‘s determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court‘s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (emphasis in original, cleaned up). “The finder of fact is the exclusive judge of the weight of the evidence[,] as the fact[-]finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses.” Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa.Super. 2013) (en banc). Therefore, we will reverse a verdict and grant a new trial only where the trial court abused its discretion in declining to find that the verdict is so contrary to the evidence as to shock one‘s sense of justice. Id.
Appellant contends that the trial court abused its discretion in finding him guilty of criminal mischief because Mr. Korimko‘s testimony was “incredible, unreliable, and self-serving,” and “wholly inconsistent and unreliable.” Appellant‘s brief at 12-13. According to Appellant, his own “testimony presented a more coherent, reasonable and likely account of what happened. . . .” Id. at 13. He additionally claims that “the contradictions that riddled [Mr.] Kori[m]ko‘s testimony . . . shock one‘s sense of justice.” Id. Appellant points to the police incident report which indicates that Mr. Korimko told police that repairs to his motorcycle would cost an estimated $250. Id. (citing Affidavit of Probable Cause, 4/16/16). He contrasts Mr. Korimko‘s initial estimate with his trial testimony that, without paint, the actual cost of the repairs to the frame of his motorcycle totaled $1,492. Id. Appellant argues that Mr. Korimko‘s explanation for the discrepancy (i.e., that he initially believed only the headlight was damaged) was incredible, considering Mr. Korimko‘s contention “that he observed the caved-in nature of the cowl immediately after impact.” Id. at 14 (emphasis in original). He further discredits Mr. Korimko‘s testimony because he described his motorcycle to police as a 2014 Kawasaki, yet testified at trial that it was a 2012 model. Id. at 15. Appellant also claims that “[t]o believe that one single punch by [Appellant] to [Mr.] Kori[m]ko‘s motorcycle caused
According to Appellant, the “most indicative and self-serving” aspect of Mr. Korimko‘s testimony was the deal they struck for Mr. Korimko to remove a vehicle from Appellant‘s property. Id. at 15-16. Appellant asserts that, although Mr. Korimko indicated that he ended up slowly dismantling the vehicle because a junkyard would not accept it without a title, “his testimony left unclear whether the parts were in a junkyard, or in his garage having been rejected by the junkyard.” Id. at 16. He further contends that “[t]he disagreement over the vehicle parts provided [Mr.] Kori[m]ko with an opportunity to fabricate a story painting [Appellant] as an angry and physical aggressor.” Id. at 17. Finally, Appellant argues that Mr. Korimko‘s “testimonial contradictions and inconsistencies, coupled with his motivation for testifying as he did against [Appellant],” render the guilty verdicts against the weight of the evidence. Id. at 17-18.
When, as in the instant case, the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court‘s decision is extremely limited. See Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.Super. 2009); see also Widmer, supra at 751-52 (“A new trial should not be granted because of a mere conflict in the testimony“). “[W]here the trial court has ruled on the weight claim below, an appellate court‘s role is not to consider the underlying question of whether the verdict is against the weight of the evidence.” Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). “Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.” Id.; see also Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa.Super. 2004) (“Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review.” (citation omitted)).
In order to convict Appellant of criminal mischief, the Commonwealth was required to prove that Appellant “intentionally damage[d] . . . personal property of another.”
In his second issue, Appellant contends that the $2,000 restitution award is “speculative and not supported by the record.” Appellant‘s brief at 18. Appellant concedes
The Commonwealth counters that Appellant‘s restitution claim implicates the discretionary aspects of his sentence, and is waived based on his failure to comply with
his sentence. For the reasons that follow, we conclude that Appellant‘s restitution claim presents a challenge to the discretionary aspects of his sentence which must be preserved for our review; and, further, that it was not so preserved.
Restitution is a creature of statute and, without express legislative direction, a court is powerless to direct a defendant to make restitution as part of a sentence. Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992). In the context of criminal proceedings, restitution may be imposed either as a direct sentence,
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 . . . the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.
In fashioning an award of restitution, the sentencing court must consider the extent of injury suffered by the victim, the victim‘s request for restitution, and such other matters as it deems appropriate. See
In In the Interest of Dublinski, 695 A.2d 827 (Pa.Super. 1997), this Court noted an apparent conflict in our decisions as to whether an appeal of an order of restitution implicates the legality or the discretionary aspects of a particular sentence in a criminal proceeding. See id. at 828-29 (noting that several opinions had held that a claim that a restitution award is speculative implicated the discretionary aspects of sentencing, whereas other opinions had held that a claim that the restitution award is not supported by the record implicates the legality of the sentence).
In In the Interest of M.W., 725 A.2d 729, 731 n.4 (Pa. 1999), our Supreme Court addressed the confusion and clarified that a claim that the trial court lacked statutory authority to impose restitution implicates the legality of sentence, whereas a claim that the amount of restitution is excessive implicates the discretionary aspects of sentencing. In that case, the juvenile defendant, M.W., entered a negotiated plea and was adjudicated delinquent based upon commission of conduct constituting the offense of criminal trespass. M.W. averred that restitution was improper because the juvenile court lacked statutory authority to impose restitution in light of the Commonwealth‘s failure to prove M.W. caused any property damage. M.W. prevailed before this Court, and after being granted allowance of appeal, the Commonwealth argued to the Supreme Court that the issue had been waived because the question raised related to the discretionary aspects of sentence, and M.W. had not included a
We recognize that there has been some confusion as to whether an appeal of an order of restitution implicates the legality or the discretionary aspects of a particular sentence in a criminal proceeding. Where such a challenge is directed to the trial court‘s authority to impose restitution, it concerns the legality of the sentence; however, where the challenge is
premised upon a claim that the restitution order is excessive, it involves a discretionary aspect of sentencing.
Id. at 731 n.4 (internal citations omitted).
Despite the clarity afforded by our High Court in In re M.W., this Court continues to include boilerplate language to the effect that a challenge to the legality of sentence is presented when the defendant claims that the sentence of restitution is “unsupported by the record.” See e.g., Commonwealth v. Rotola, 173 A.3d 831, 834 (Pa.Super. 2017) (“An appeal from an order of restitution based upon a claim that it is unsupported by the record challenges the legality, rather than the discretionary aspects, of sentencing; as such, it is a non-waivable matter“). Unfortunately, the phrase “unsupported by the record” provides no meaningful guidance as to whether a particular claim implicates the discretionary aspects or legality of sentencing, as its broad scope is amenable to differing interpretations. In some cases, a lack of record support may implicate the sentencing court‘s statutory authority to impose restitution and, hence, the legality of sentence. In other cases, there may be a lack of record support for the amount of restitution, which would implicate the court‘s discretion in determining the amount of restitution to be imposed. Thus, the mere use of the phrase “unsupported by the record” is not determinative, and cannot, ipso facto, operate to transform a discretionary aspects of sentencing claim into a legality of sentence claim
We are bound to follow the reasoned approach of our Supreme Court in In re M.W., wherein it drew a distinction between claims that challenge the sentencing court‘s statutory authority to impose restitution, and those which seemingly concede such authority, but challenge the court‘s exercise of discretion in determining the appropriate amount of restitution. In re M.W., supra at 731 n.4. Accordingly, in determining whether a particular claim implicates the legality or discretionary aspects of sentencing, we do not merely look at the manner in which a restitution challenge is phrased; we must instead examine the specific nature of the claim presented to determine whether it challenges the sentencing court‘s statutory authority to impose restitution, or its discretion in determining the amount of restitution.
According to the High Court, when a challenge is directed to the trial court‘s statutory authority to impose restitution, it concerns the legality of the sentence. Id. at 731. A sentencing court has statutory authority to impose restitution under
A.3d 69, 75 (Pa.Super. 2017) (en banc) (plurality) (holding that legality of sentence was implicated where defendant claimed that the victim‘s funeral costs and expenses were not a direct result of his criminal actions); Commonwealth v. Barger, 956 A.2d 458, 464 (Pa.Super. 2008) (holding that legality of sentence was implicated where defendant claimed no causal connection between order restitution for replacement cost of the couch on which victim was allegedly raped when defendant was acquitted of all rape and sexual assault charges); Commonwealth v. Langston, 904 A.2d 917,
(Footnote Continued) Ultimately, the Poplawski court determined that the restitution order was illegal since the Commonwealth failed to establish a direct causal connection between the crime committed and the loss claimed by the victim. The record was unclear as to whether some portion of the $41,637 represented payment for work beyond that which Poplawski was requested and paid to perform. As explained by the Poplawski court, “we cannot determine whether this $41,637 was money [the complainant] would have had to expend to complete the project regardless of [Poplawski‘s] involvement.” Poplawski, supra at 674-75. Thus, in Poplawski, the Commonwealth failed to establish that the victim‘s losses were directly caused by the particular crime committed by Poplawski.
Poplawski is factually and legally distinguishable from the case sub judice. The instant appeal does not involve a challenge to the sentencing court‘s statutory authority to impose restitution. Appellant was convicted of criminal mischief for the damage he caused to Mr. Korimko‘s motorcycle. Mr. Korimko testified that he paid $1,492 to repair the motorcycle and that it would cost an additional estimated $1,000 to repaint it. Unlike in Poplawski, there is no argument that any aspect of loss claimed by Mr. Korimko was not directly caused by Appellant. Instead, the Commonwealth established a direct causal connection between the crime for which Appellant was convicted and the costs to repair and repaint the motorcycle. As each of the requirements of section 1106(a) were satisfied, the sentencing court was authorized to impose restitution for the repair and painting costs. Therefore, the legality of Appellant‘s sentence of restitution is not implicated.
921 (Pa.Super. 2006) (holding that legality of sentence was implicated where defendant claimed that the trial court lacked statutory
Conversely, where the Commonwealth has established each element of
Here, although Appellant frames his challenge to the restitution order as “unsupported by the record,” ostensibly in an attempt to suggest that it is a legality of sentence claim, his brief lacks any viable claim that the sentencing court did not have statutory authority to impose restitution under
The crux of Appellant‘s argument is that, because Mr. Korimko paid $1,492 in repair costs, but had not yet paid the estimated $1,000 cost to repaint the motorcycle as of the date of sentencing, the $2,000 restitution award exceeded the amount of Mr. Korimko‘s actual losses, and was therefore excessive. See Appellant‘s brief at 19-20. As Appellant‘s claim concerns the amount of restitution ordered, rather than the propriety of restitution, his claim implicates the discretionary aspects of his sentence.
Having concluded that Appellant presents a challenge the discretionary aspects of his sentence, we must consider his brief on this issue as a petition for permission to appeal. See Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.Super. 1997). Prior to reaching the merits of a discretionary sentencing issue, this Court must determine:
(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and903 ; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, seePa.R.Crim.P. [720] ; (3) whether appellant‘s brief has a fatal defect, [see]Pa.R.A.P. 2119(f) ; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, [see]42 Pa.C.S.A. § 9781(b) .
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation omitted).
In the instant case, Appellant filed a timely
Judgment of sentence affirmed.
Judge Olson joins the opinion.
Judge Kunselman files a concurring opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: