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Commonwealth v. Kearney

Superior Court of Pennsylvania

December 23, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS J. KEARNEY Appellant

          Appeal from the Judgment of Sentence Entered June 15, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005031-2017

          BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E. [*]

          OPINION

          STEVENS, P.J.E.

         Appellant, Thomas J. Kearney, appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County, which sitting as finder of fact in Appellant's waiver trial, found him guilty of criminal mischief, 18 Pa.C.S. § 3304, infra, graded as a misdemeanor in the third degree. On appeal, Appellant contends the court erred in sua sponte amending the grading of the charge of the offense from a felony of the third degree, involving at least $5, 000 in pecuniary loss, to a misdemeanor of the third degree, requiring at least $500 in pecuniary loss, at the end of trial and immediately before announcing its verdict.

         Appellant also challenges the sufficiency of the evidence offered to prove the statutory damages amount of $500 for the M3 offense. For its part, the trial court now concedes both points and recommends we vacate judgment of sentence.

         After careful review, we are constrained to vacate judgment of sentence, as we agree with the trial court that insufficient evidence was offered to prove at least $500 in damages suffered by the complainant.

The trial court sets forth the facts and procedural history, as follows:
On March 7, 2017, around 12:20 a.m., Detective Pridaka [of the Philadelphia Police Department] responded to a shooting incident complaint which occurred on the 5800 block of Anderson Street. At the scene of the incident, Detective Pridaka recovered two .40 caliber fired cartridge casings (FCCs) and noticed a white 2016 Dodge Charger RT, which had been damaged when a brick was thrown at it. Detective Pridaka prepared a crime scene sketch and took crime scene photos of the 5800 block of Anderson Street and the damaged vehicle. N.T. 6/15/18, at 64-65.
After the complaint was taken to the Northwest division, Detective Wayne Brown was assigned to the case and took a statement from the Complainant, Daniel Franklin. Id. at 39-40. The Complainant's statement indicated that when the Complainant left his house around 12:20 a.m., he saw a brick on top of his car and upon his removal of the brick, he noticed the brick had smashed his front windshield. The Complainant further described that there were dents all over the corner of his car and that he proceeded to call 911 regarding the damage to his vehicle.
[The complaint indicated further that] [w]hile the Complainant waited for police to respond, he noticed a car backing up at the corner of Price and Anderson and saw [Thomas Kearney], the Defendant [hereinafter "Appellant"], get out of the car and begin walking up the block towards the Complainant's vehicle. Appellant picked up the brick and threw it at the Complainant's car again. The Complainant screamed at Appellant, which prompted Appellant to take off running; while running, Appellant turned and started firing shots at the Complainant.
The Complainant did not know Appellant by name, but he recognized him as his coworker's fiance'. Id. at 17-18. When asked by Detective Brown why Appellant would want to vandalize the Complainant's car, the Complainant responded that he [recently had] an affair with Appellant's fiancée. Id. at 22.

Trial Court Opinion, 1/9/19, at 2.

         Appellant was charged with criminal mischief, graded as a felony in the third degree, [1] and he proceeded to a waiver trial. At trial, the Complainant testified that he was unable to remember anything about the night in question. The Commonwealth, therefore, had Complainant's police statement, which including Complainant's personal opinion that Appellant caused $10, 000 damage to his car, admitted into the record pursuant to Pa.R.E. 803.1(1).

         Specifically, in the police statement, the written form asks "What is the total damage to your vehicle? Complainant answered "The hood, body, door, window, tire flat. I am going to say $10, 000 with all the dents and stuff. They will have to repaint the whole car." N.T. at 30-31. On cross-examination, however, Complainant confirmed he was "guessing" when he answered that the total damage to his vehicle would amount to $10, 000. N.T. At 31. Appellant testified in his defense and admitted he threw a rock and a brick at Complainant's car, but he denied having or using a gun.

         The court heard closing arguments, where defense counsel maintained that without any meaningful estimate from a body shop, garage, or other informed source, the only charge substantiated by the evidence was summary criminal mischief, which involves damages less than $500. The Commonwealth failed to introduce any valuation evidence enabling the fact finder to assign a value that would support a higher grade of criminal mischief, the defense posited. N.T. at 101.

         The Commonwealth denied that a professional estimate was necessary to prove its case, and it insisted, instead, that the fact finder could look to the evidence, including Complainant's own personal assessment that the damage totaled $10, 000, and reasonably infer a valuation that would support the felony 3 charge. N.T. at 102-03.

         The court began by finding Appellant not guilty of aggravated assault, simple assault, REAP, and PIC, as it "[did not] necessarily believe the Complainant's story[]" in its entirety and considered Appellant's version equally plausible, particularly because Appellant's conduct after the fact was inconsistent with his having committed a serious gun offense as charged. The court ...


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