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[U] Commonwealth v. Cookson

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRAD STEPHEN COOKSON, JR., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of February 19, 2013 I n the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000303-2012.

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Brad Stephen Cookson, Jr., appeals from the judgment of sentence entered on February 19, 2013. We affirm.

On November 20, 2012, Appellant pleaded guilty to the summary offense of criminal mischief.[1] As part of the plea agreement, Appellant agreed that "a restitution hear[ing] shall be held at which time [ the] Com[monwealth would] not be limited to [ the] summary limit regarding restitution [ ] and [ the trial] court can order restitution of more than [ the] summary amount if [ the] Com[monwealth] proves same."[2] Plea Agreement, 11/ 20/ 12, at 1. That day, the Honorable Timothy F. McCune of the Court of Common Pleas of Butler County[3] entered an order declaring that Appellant's sentencing hearing would occur on a future date and that, during the sentencing hearing, Judge McCune would hear testimony "regarding the restitution [ that] is to be ordered as part of this sentence." Trial Court Order, 11/ 20/ 12, at 1.

During the restitution hearing, the trial court heard testimony from the victim in this case, Steve Pelusi. Mr. Pelusi testified that, in 2011, he was renting an apartment to Appellant and that he was forced to evict Appellant due to Appellant's non-payment of rent. N.T. Restitution Hearing, 2/19/13, at 4-5. According to Mr. Pelusi, on December 22, 2011, he saw Appellant on the street and realized that Appellant was attempting to steal the refrigerator from his apartment, as well as "a yellow table[, ] a variety of antiques[, ] some hardware, some pipes[, ] and miscellaneous things" from the apartment building basement. Id. at 5-6. Mr. Pelusi testified that he telephoned the police and – although Appellant left the refrigerator on the street – Appellant absconded with the remaining property. Id. 6-9. Moreover, Mr. Pelusi testified that the refrigerator did not work after Appellant had left it on the street. Id. at 9.

Mr. Pelusi testified as to the value of all the broken or stolen item s. As Mr. Pelusi specifically testified: the refrigerator was worth $350.00; the table was worth $150.00; the hardware was worth $1, 600.00; and, the pipes were worth $1, 400.00. Thus, Mr. Pelusi testified, the grand total of the property that Appellant either stole or broke was $3, 500.00. Id. at 9-11. Appellant did not object to any portion of Mr. Pelusi's testimony and Appellant did not claim that Mr. Pelusi's estimates were somehow speculative. See id.

During the restitution hearing, Appellant testified on his own behalf and denied stealing or attempting to steal anything from the apartment or the apartment building. Id. at 25. Moreover, Appellant testified that his apartment refrigerator had been broken for a long time prior to December 22, 2011 and that he had, in fact, notified the landlord's superintendent that his refrigerator was broken. Id. at 23.

At the conclusion of the restitution hearing, the district attorney recommended that the trial court order Appellant to pay Mr. Pelusi either $3, 500.00 or $3, 330.00[4] in restitution. Id. at 30.

The trial court ordered Appellant to pay Mr. Pelusi $3, 150.00 in restitution. Specifically, the trial court declared:

The [ trial] court finds restitution shall be due to Mr. Pelusi, [ $150.00] for the table, [ $1, 600.00] for the [ hardware], [ $1, 400.00] for the gas pipe. [ The trial court] is not ...

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