Opinion
J-A21036-16 No. 2816 EDA 2015
10-24-2016
COMMONWEALTH OF PENNSYLVANIA v. HASSIEN SISTRUNK, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 24, 2015 in the Court of Common Pleas of Montgomery County, Criminal Division, No(s): CP-46-CR-0011738-2011 BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Hassein Sistrunk ("Sistrunk") appeals from the judgment of sentence imposed after a jury convicted him of two counts each of burglary and conspiracy to commit burglary, and one count of criminal trespass. We affirm in part, and vacate in part.
The trial court concisely set forth the relevant factual and procedural history underlying this appeal, which we adopt as though fully set forth herein. See Trial Court Opinion, 11/24/16, at 1-4.
As an addendum, we observe the following. Notably, the jury acquitted Sistrunk of some of the charges against him, including theft by unlawful taking or disposition, and receiving stolen property (hereinafter collectively referred to as "the theft-related offenses"). Additionally, Sistrunk's co-defendant, Michael Cannon ("Cannon"), entered an open guilty plea to the charges against him arising out of the burglaries. However, Cannon failed to appear at his sentencing hearing, and a bench warrant was issued for his arrest. Cannon remains at large. Finally, the amount of restitution that the trial court ordered Sistrunk to pay, $27,685.53 (jointly and severally with Cannon), represented the value of the victims' personal property that was stolen from their residences. At sentencing, the victims testified as to their losses, and submitted victim impact testimony and letters.
In this timely appeal, Sistrunk presents the following issues for our review:
I. Whether the judgment of sentence must be vacated and [Sistrunk] discharged because the trial court erred as a matter of law and abused its discretion in failing to set aside the jury's guilty verdicts for burglary and conspiracy to commit burglary, when the trial record is void of any factual findings of what crime was committed inside the residences, or intended to be committed inside, and the jury expressly found that no theft[-]related crimes were committed[?]
II. Whether the trial court abused its discretion and erred as a matter of law when it denied [Sistrunk's] Batson challenge at the time of jury selection[?]
III. Whether the judgment of sentence must be vacated and [Sistrunk] discharged because the record indicates, when compared to [Sistrunk's] co-defendant, that [Sistrunk] was selectively prosecuted due to his decision to [i]nvoke his constitutional right to a jury trial, in violation of his state and federal constitutional rights, as evidenced by the disparaging treatment at the sentencings[?]
IV. Whether the trial court abused its discretion when it considered victim impact testimony at the time of sentencing regarding losses from thefts and persons being present during a burglary, when the jury found that there were no losses from thefts and no persons were present at the time of the burglaries[?]Brief for Appellant at 4 (issues renumbered for ease of disposition; footnote added; capitalization omitted).
V. Whether the trial court erred as a matter of law in ordering restitution for allegedly stolen items when there is no causal connection between the jury verdict and the alleged losses sustained by the victims, as the jury made specific findings that there were no such losses[?]
Batson v. Kentucky , 476 U.S. 79 (1986).
Sistrunk first argues that the trial court erred by failing to set aside his convictions for burglary and conspiracy to commit burglary, where the jury had acquitted him of the theft-related offenses. See id. at 14-17. Sistrunk asserts that
Sistrunk does not challenge his conviction of criminal trespass.
due to the Commonwealth's request for restitution for the stolen items from the [burglarized] household[s], the Commonwealth implicitly specified the crime alleged to have occurred during the burglar[ies] - the theft of the items. Further, due to the trial court's determination that restitution was warranted in this matter to cover the costs of the items stolen during the burglar[ies], the court made a judicial determination that a theft[-]related charge did occur inside the households. However, because the jury expressly determined that [] Sistrunk committed no crimes that would be related to the theft of personal items, the trial court committed an error [of] law by making such a determination and, based upon this determination, must set aside the convictions for burglary and conspiracy to commit burglary.Id. at 14; see also id. at 15 (citing Commonwealth v. Brown , 886 A.2d 256, 260 (Pa. Super. 2005) (stating that "[w]hen the Commonwealth does specify, in the information or indictment, the crime defendant intended to commit, the Commonwealth must prove the requisite intent for that particular crime in order to prove a burglary or attempted burglary.")).
Sistrunk concedes that, here, the Commonwealth did not specify, in the information or indictment, the crime(s) that he intended to commit inside of the victims' residences. Brief for Appellant at 15.
In its Opinion, the trial court set forth the relevant law, addressed Sistrunk's claims, and properly determined that his challenge to his convictions lacks merit. See Trial Court Opinion, 11/24/16, at 5-8. We affirm with regard to this issue based on the trial court's sound rationale. See id.
In his second issue, Sistrunk contends that the trial court erred by denying his Batson challenge, where the Commonwealth discriminated against him by using its peremptory challenges to remove two African American (Sistrunk's race) potential jurors during voir dire. See Brief for Appellant at 23-30. Sistrunk argues that
in the jury panel of forty[-]five [] potential jurors, there were only three [] African American potential jurors. [After one of these jurors was stricken for cause,] ... [t]he Commonwealth used its p[er]emptory strikes to strike the remaining two African American prospective jurors, identified in the record as Juror Number 12 and Juror Number 18 [(collectively "the stricken venirepersons")]. Accordingly, the prosecutor was required to provide adequate, neutral, legitimate, and reasonably specific explanations for striking [the stricken venirepersons]. However, the explanations provided were not adequate, [race-]neutral,
legitimate, and reasonably specific, but rather[,] based upon the prosecutor's "feelings" and "lack of confidence" in [the stricken venirepersons].Id. at 24 (internal citation to record omitted) (citing Batson , 476 U.S. at 94 (stating that where an appellant "has made a prima facie showing of purposeful discrimination, the burden shifts to the prosecution to come forward with a clear and reasonably specific [race-]neutral explanation for challenging such jurors")).
In its Opinion, the trial court set forth the applicable law, summarized the relevant portions of the voir dire transcript containing the prosecutor's reasons for striking the stricken venirepersons, and opined that the court properly denied Sistrunk's Batson challenge, as the prosecutor gave sufficient, race-neutral reasons for the challenges. See Trial Court Opinion, 11/24/16, at 9-14. We affirm with regard to this issue based on the trial court's reasoning. See id.; see also Commonwealth v . Sanchez , 36 A.3d 24, 45 (Pa. 2011) (rejecting the defendant's Batson challenge and stating that "[w]here, as here, there is little evidence bearing on the issue of the prosecutor's discriminatory intent, and the best evidence is the demeanor of the attorney who exercises the challenge, the trial court's determination will turn on the court's assessment of the prosecutor's credibility[,]" which an appellate court will ordinarily not disturb).
In his third issue, Sistrunk contends that his judgment of sentence must be vacated because the Commonwealth "selectively prosecuted" him (when compared to his co-defendant, Cannon, who entered an open guilty plea), due to Sistrunk's decision to exercise his constitutional right to a jury trial. See Brief for Appellant at 30-34; see also id. at 32 (asserting that "Cannon, although similarly situated, was not prosecuted for his similar conduct.").
"In order to establish a prima facie case of selective prosecution, [an a]ppellant must establish, first, that others similarly situated were not prosecuted for similar conduct, and, second, that the Commonwealth's discriminatory prosecutorial selection was based on impermissible grounds such as race, religion, the exercise of some constitutional right, or any other such arbitrary classification." Commonwealth v. Childress , 799 A.2d 805, 811 (Pa. Super. 2002) (citation omitted). In the instant case, Sistrunk failed to meet the first prong of the above test, as the Commonwealth, in fact, prosecuted Cannon.
Sistrunk's claim is more properly viewed as alleging vindictive prosecution. "The defense of prosecutorial vindictiveness is based upon the theory that due process prohibits a prosecutor from punishing a criminal defendant in retaliation for that defendant's decision to exercise a constitutional right." Commonwealth v. Butler , 601 A.2d 268, 270 (Pa. 1991); see also Commonwealth v. Smith , 664 A.2d 622, 628-29 (Pa. Super. 1995) (stating that prosecutorial vindictiveness exists "where the accused is treated more harshly because he successfully exercised a lawful right, e.g., the right to seek a new trial." (citation and brackets omitted)). A claim of prosecutorial vindictiveness is a question of law and not of fact, and is unrelated to the question of guilt or innocence. Butler , 601 A.2d at 270; see also Commonwealth v. Raban , 85 A.3d 467, 468 (Pa. 2014) (stating that where an issue implicates a question of law, our standard of review is de novo and our scope of review is plenary).
Sistrunk argues that the vindictiveness of the prosecution against him is evident when compared with the disparate treatment that Cannon received after he entered a guilty plea, despite being similarly-situated. See Brief for Appellant at 32-34. Sistrunk avers that, at his sentencing, the Commonwealth (1) improperly presented victim impact statements that referenced only Sistrunk, not Cannon; (2) "disagree[d] with the trial court that the two co-defendants should be given the same consideration for their same crimes"; and (3) "request[ed] [] the trial court ... [to] sentence [Sistrunk] in a harsher manner than Cannon." Id. at 33, 34.
Sistrunk additionally alleges that the prosecutorial vindictiveness is evident because the Commonwealth allegedly agreed for Cannon to be released on bail following his guilty plea, whereas it asked the trial court to revoke Sistrunk's bail after he was convicted of the same offenses. Brief for Appellant at 33-34. Sistrunk, however, has waived this claim by failing to raise it before the trial court. See Pa.R.A.P. 302(a) (stating that an issue cannot be raised for the first time on appeal); see also Commonwealth v. Rosser , 135 A.3d 1077, 1086 (Pa. Super. 2016) (stating that "[w]here the trial court denies relief on one theory, a defendant may not attain appellate relief on a new theory for that same relief."). Nevertheless, even if this claim was properly preserved, we determine that it would not entitle Sistrunk to relief.
Sistrunk offers nothing in support of his bald allegation that the prosecution's actions toward him were the result of his having exercised his right to a jury trial, nor does our review of the record reveal any support for such claim. Indeed, a review of the sentencing transcript reveals no indication that the prosecutor made statements evidencing vindictiveness toward Sistrunk. Moreover, to the extent that Sistrunk claims that the prosecution announced an intent to seek a harsher sentence for Sistrunk than Cannon, this claim is speculative and unavailing. Even assuming, arguendo, that Cannon was similarly situated to Sistrunk, Cannon absconded and has not been sentenced. Finally, to the extent that Sistrunk points out that the victim impact statements presented at his sentencing referenced only him and not Cannon, this claim is unavailing and nonsensical.
In his fourth issue, Sistrunk asserts that the sentencing court abused its discretion when it considered victim impact testimony concerning the victims' losses from the thefts, prior to sentencing Sistrunk. See Brief for Appellant at 35-37. Specifically, Sistrunk contends that because the jury acquitted him on the theft-related charges, the sentencing court improperly considered victim impact testimony concerning those losses, as it was irrelevant and "contradict[ed] the jury's verdict." Id. at 37.
Sistrunk's claim implicates the discretionary aspects of his sentence, from which there is no absolute right to appeal. Commonwealth v. Hill , 66 A.3d 359, 363 (Pa. Super. 2013); see also Commonwealth v. McNabb , 819 A.2d 54, 57 (Pa. Super. 2003) (stating that a claim that a sentencing court relied on impermissible factors constitutes a challenge to the discretionary aspects of sentencing). Before this Court may address the merits of a discretionary sentencing claim, the appellant must have set forth in his or her brief a concise statement of the reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of Appellate Procedure 2119(f). See Commonwealth v. Robinson , 931 A.2d 15, 19 (Pa. Super. 2007) (en banc). If, however, an appellant fails to include a Rule 2119(f) statement in the brief, and the Commonwealth objects to this failure, then the appellant's discretionary sentencing claim is waived and this Court may not review it. Id.
Here, the Commonwealth objected to Sistrunk's failure to include the requisite Rule 2119(f) statement in his brief. See Commonwealth's Brief at 31-32. Accordingly, we deem Sistrunk's discretionary sentencing claim waived on this basis. See Robinson , 931 A.2d at 22 (finding waiver of the appellant's discretionary sentencing claim because he had failed to include the claim in his Rule 2119(f) statement and the Commonwealth objected to this failure).
Even if we did not find waiver of Sistrunk's claim, we would determine that it lacks merit based upon the reasoning advanced by the trial court in its Opinion. See Trial Court Opinion, 11/24/16, at 15-16.
Finally, Sistrunk argues that the sentencing court imposed an illegal sentence when it ordered him to pay restitution to the victims for the items stolen from their homes during the burglaries, where the jury had acquitted him of the theft-related offenses. See Brief for Appellant at 17-22.
In the context of criminal proceedings, an order of restitution is not simply an award of damages, but, rather, a sentence. An appeal from an order of restitution[,] based upon a claim that a restitution order is unsupported by the record [or the law,] challenges the legality, rather than the discretionary aspects, of sentencing. The 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.Commonwealth v. Stradley , 50 A.3d 769, 771-72 (Pa. Super. 2012) (citations and quotation marks omitted); see also Commonwealth v. Atanasio , 997 A.2d 1181, 1183 (Pa. Super. 2010). An illegal sentence of restitution must be vacated. Commonwealth v. Gentry , 101 A.3d 813, 817 (Pa. Super. 2014).
A sentence of restitution must be based upon statutory authority. Commonwealth v. Barger , 956 A.2d 458, 464 (Pa. Super. 2008) (en banc). Section 1106 of the Crimes Code provides, in relevant part, that a sentence of restitution may be imposed "[u]pon 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 ...." 18 Pa.C.S.A. § 1106(a). Importantly, a defendant may only be held accountable for restitution as to the "losses flowing from the conduct for which the defendant has been held criminally accountable." Commonwealth v. Cooper , 466 A.2d 195, 197 (Pa. Super. 1983); see also Commonwealth v. Harner , 617 A.2d 702, 706 (Pa. 1992) (stating that section 1106 "is clear on its face and applies only for those crimes to property or person where there has been a loss that flows from the conduct which forms the basis of the crime for which a defendant is held criminally accountable."); Commonwealth v. Balisteri , 478 A.2d 5, 9 (Pa. Super. 1984) (stating that "[t]o order a defendant to pay restitution, his or her criminal conduct must have caused the loss or injury being compensated for.").
Sistrunk argues that the restitution order is unlawful and cannot stand because
there is no "causal connection" between the burglary charges [of which Sistrunk was convicted] and the restitution order due to the jury's express finding that [Sistrunk] was not guilty of the theft[-related offenses]. Further, it cannot be assumed or speculated by the trial court that the jury determined that the crime underlying the burglary was related to the missing items. ... [T]he jury clearly found that [Sistrunk] was not guilty of all theft[-related] ... offenses, and there is no additional evidence or information on the record that would indicate that the burglaries directly resulted in the theft of such items.Brief for Appellant at 19 (some quotation marks omitted). We agree. Because the jury did not hold Sistrunk criminally accountable for the theft of any items from the victims' homes, the trial court imposed an illegal sentence when it ordered Sistrunk to pay restitution for the victims' losses incurred from the thefts. See , e.g., Barger , 956 A.2d at 465 (vacating the trial court's order that required the defendant to pay restitution for the value of the victim's couch that was allegedly lost, where "there was no direct nexus between the crime for which [the defendant] was convicted and the loss of the couch, as Section 1106 requires."); see also Cooper , 466 A.2d at 197 (vacating the trial court's order that required the defendant to pay restitution for the costs connected with a victim's death incurred by the victim's family because the defendant only pled guilty to leaving the scene of the accident and was not found criminally responsible for having struck the victim).
Accordingly, we affirm the judgment of sentence of incarceration imposed on Sistrunk's convictions. However, we vacate the judgment of sentence insofar as it ordered Sistrunk to pay restitution.
Judgment of sentence imposing restitution vacated. Judgment of sentence in all other respects affirmed. Superior Court jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/24/2016
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