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.
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
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.
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,
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.
was charged with criminal mischief, graded as a felony in the
third degree,  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).
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.
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.
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.
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 ...