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Commonwealth v. Munno

SUPERIOR COURT OF PENNSYLVANIA
Sep 9, 2016
No. J-S65010-16 (Pa. Super. Ct. Sep. 9, 2016)

Opinion

J-S65010-16 No. 1561 WDA 2015

09-09-2016

COMMONWEALTH OF PENNSYLVANIA Appellee v. MARCO DOMONIC MUNNO Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.:

Retired Senior Judge assigned to the Superior Court.

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. 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 The RSP charge was withdrawn at Munno's preliminary hearing and he waived his right to a jury trial on the charge of retail theft.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:

[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:

(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 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?"

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).

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) 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 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).

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).

Instantly, the trial court urges this court to remand the matter solely on the issue of the amount of restitution imposed upon Munno based upon the fact that the Commonwealth did not present any documentation to support the $800.00 order of restitution. We agree.

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.

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, we affirm on the basis of the opinion authored 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).

The offense of retail theft is defined as:

(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).

Judgment of sentence affirmed in part and vacated in part. Case remanded for proceedings consistent with this decision. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/9/2016

We affirm the retail theft conviction and remand solely for resentencing on restitution as a condition of Munno's probation.

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Summaries of

Commonwealth v. Munno

SUPERIOR COURT OF PENNSYLVANIA
Sep 9, 2016
No. J-S65010-16 (Pa. Super. Ct. Sep. 9, 2016)
Case details for

Commonwealth v. Munno

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA Appellee v. MARCO DOMONIC MUNNO Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 9, 2016

Citations

No. J-S65010-16 (Pa. Super. Ct. Sep. 9, 2016)