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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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