Loading...
HomeMy WebLinkAboutCP-21-CR-0003340-2015COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : CHARGE: (1) THEFT BY UNLAWFUL TAKING OR DISPOSITION SHANE MATTHEW REASNER : OTN: T7113584 : CP -21 -CR -3340-2015 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, S.J., April 11, 2018. In this criminal case, Defendant entered a plea of guilty to theft by unlawful taking in connection with two bicycles stolen from a residential property in Upper Allen Township, Cumberland County, Pennsylvania.' At the time of the plea, it was understood that the Commonwealth would be requesting restitution for the bicycles in the amount of $900.00, and that Defendant had an option to challenge this amount by way of a post - sentence motion .2 Following the court's receipt of a presentence investigation report, Defendant was sentenced by the Honorable M.L. Ebert, Jr., to a period of probation for the offense, and directed to make restitution to the victim in the amount of $900.00.3 In response to a post - sentence motion filed by Defendant challenging the amount of restitution,4 a hearing was held by the undersigned judges and Defendant's motion was granted to the extent that the restitution figure was reduced to $800.00.6 See Order of Court, dated October 18, 2017; Criminal Complaint, filed October 6, 2015. At the same time, Defendant entered pleas of guilty in separate cases to driving under the influence of a controlled substance and unlawful possession of drug paraphernalia, and to terroristic threats and simple assault. See Order of Court, dated October 18, 2017. These other cases are not involved in Defendant's current appeal. 2 See Guilty Plea Colloquy Form, filed October 18, 2017; see also N.T. 3-5, Sentencing Proceeding, November 14, 2017. 3 Order of Court, dated November 14, 2017. Judge Ebert has since retired from the Cumberland County bench to assume the duties of Cumberland County District Attorney, and the case has been assigned to the undersigned senior judge. Order of Court, dated December 6, 2017. 4 Defendant's Post -Sentence Motion, filed November 22, 2017. 5 See note 3 supra. 6 Order of Court, dated February 13, 2018. From the judgment of sentence as modified, Defendant has filed an appeal to the Pennsylvania Superior Court.' The basis for Defendant's appeal has been expressed in a statement of errors complained of on appeal as follows: The trial court abused its discretion when it ordered restitution in the amount of $800.00 as part of Defendant's sentence because that amount was speculative and excessive where the basis for restitution was ascertained from the combination of an EBay offer listing and a price listing for a new bicycle from the Toys -R -Us website, neither of which were accurate or appropriate measures of the value of the specific items taken in this incident.$ This opinion in support of the judgment of sentence as modified is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS With respect to the value of the bicycles stolen by Defendant, for which restitution was due, the evidence at the post -sentence hearing may be summarized as follows. The owner of the bicycles testified that the bicycles were stolen from a location in the family's yard about forty feet in from the roadway, on consecutive days, the first stolen being a red, 24 -speed, 26 -inch wheel Schwinn that she herself rode and the second stolen being a green, 28 -inch wheel Mongoose that her nine-year-old daughter rode. Both bicycles were ridden regularly, subjected to routine professional maintenance, and in perfect working condition, according to the owner's testimony. Neither was recovered. The owner testified that the Schwinn was of particular interest to collectors because of its Shimano 24 -gear system, which exceeded by three the currently available 21 -speed mechanism. The bike also had Promax brakes, a custom Schwinn contour seat, and an accessory water bottle holder and bottle, according to her testimony. She estimated the value of the Schwinn, which had been a gift from her former husband six or seven years previously, at $650.00. Defendant's Notice of Appeal, filed March 15, 2018. s Defendant's Concise Statement of Errors Complained of on Appeal, filed April 5, 2018. Pa In arriving at this figure, the owner took into consideration an ad which she found on a website offering bicycles for sale that listed a 2007 Schwinn 24 -speed bicycle in California for $748.99, including a $99.99 charge for shipping.9 The ad represented the original cost of the bicycle to have been $1,400.00, and recited several accessories attached to the bicycle, some of which the stolen bicycle had and some of which it did not.1 o The owner estimated the value of the Mongoose, which she had purchased new for her daughter six or seven years prior to the theft, at $150.00, an amount similar to the purchase price. In arriving at this figure, the owner took into consideration a Toys"R"Us advertisement for a 24 -inch wheel Mongoose Ravage bicycle, priced at $149.99, with shipping not available." Defendant testified at the hearing that the bicycles had in fact been only five or ten feet from the roadway, and were lying next to two trash cans when he saw them. According to his testimony, one of the bicycles had no seat and the other, in his recollection, was black. He stated that the first theft occurred in daylight at about 7:00 or 8:00 in the evening, that he had been on foot and needed transportation to a distant location that he could not recall, and that the bicycle's chain popped off twice while he was riding it. The other bicycle, according to his testimony, was taken at about 3:00 or 4:00 in the morning while he was walking to his home. He testified that in the course of riding it home he realized it had no seat and had to complete the ride standing up. He denied that the bicycles appeared to be in new condition. With respect to recovery of the bicycles, Defendant claimed that he had left one of them in the woods and could not remember what happened to the other one. He testified that he had no clue as to the bicycles' values. 9 See Commonwealth's Ex. 1, Hearing, February 13, 2018. io Id. 11 Id. 3 DISCUSSION Statement of law. Principles related to restitution in a criminal case in Pennsylvania are well established. Initially, it may be noted that in the Commonwealth "[r]estitution is a creature of statute ...." Commonwealth v. Kinnan, 2013 PA Super 169, ¶ 71 A.3d 983, 986. In a case of the present type, the imposition of restitution is statutorily provided for. 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. 18 Pa. C. S. §1106(a). "The primary purpose of restitution is rehabilitation of the offender by impressing upon him that his criminal conduct caused the victim's personal injury and that it is his responsibility to repair the injury as far as possible." Commonwealth v. Keenan, 2004 PA Super 232, ¶3, 853 A.2d 381, 383; see also Commonwealth v. Wood, 300 Pa. Super. 463, 446 A.2d 948, 950 (1982). However, "[i]t is [also] abundantly clear that the expressed [statutory] intent ... is to fully compensate victims for losses sustained as a direct result of the actions of a criminal offender." Commonwealth v. Holmes, 2017 PA Super 2, ¶, 155 A.3d 69, 82 (en banc) (plurality). Thus, "[a]n order of restitution should `provide the victim with the fullest compensation for the loss."' 18 Pa. C. S. §1106(c)(1)(i). In this regard, replacement cost is a proper measure of the victim's injury for purposes of restitution. See Commonwealth v. Genovese, 450 Pa. Super. 105, 110, 675 A.2d 331, 333 (Pa. Super. 1996); Commonwealth v. Graham, 949 A.2d 939, 944-45, reversed on different grounds, 607 Pa. 580, 9 A.3d 196 (Pa. 2010). Pennsylvania has long adhered to the rule that an owner of property is competent to testify as to its value. Silver v. Television City, Inc., 207 Pa. Super. 150, 215 A.2d 335 (1965). "The amount awarded [for restitution] is within the sound discretion of the trial court ...." Commonwealth v. Boone, 2004 PA Super 436, ¶6. 862 A.2d 639, 4 643. Accordingly, challenges concerning the amount of restitution involve the discretionary aspects of sentencing. See Commonwealth v. Pleger, 2007 PA Super 300, ¶22, 934 A.2d 715, 719. Application of law to facts. In the present case, the court did not find credible Defendant's explanation of his disposition of the stolen property, the recovery of which would have obviated the need for a calculation of the amount of restitution. 12 In addition, the court found the victim's testimony entirely credible and, to the extent that it differed from Defendant's, the Defendant's testimony not credible. While neither bicycle was new, the court accepted the proposition that they were each in perfect condition and that their replacement would necessitate at least the expenses estimated by the owner. Given the purposes of restitution as recounted above, the total restitution figure of $800.00 for the victim's two stolen bicycles, one of which was a vintage model, seemed to the court more than fair and reasonable. BY THE COURT, J. Wesley Oler, Jr., S.J. Charles J. Volkert, Jr., Esq. Cumberland County District Attorney's Office For the Commonwealth Christopher McCabe, Esq. Cumberland County Public Defender's Office For the Defendant 12 Cf. Commonwealth v. Kinnan, 2013 PA Super 169, 71 A.3d 983. 61